Civil Revision No.7171 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.7171 of 2010(O&M) Date of Decision: May 3, 2011 Mehar Singh .....Petitioner v. Balwan Singh and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.V.K.Jindal, Advocate for the petitioner. Mr.S.S.Kaliramna, Advocate for the respondents. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 6.10.2010, Annexure P2, passed by learned Additional District Judge, Karnal, vide which learned appellate Court has accepted the appeal filed by respondents under Order 43 Rule 1 of the Code of Civil Procedure (for short `the Code') against order dated 9.7.2010, Annexure P1, passed by learned trial Court, i.e., learned Civil Judge, Junior Division, Karnal, vide which application filed by petitioner-plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code was allowed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned orders passed by learned courts below. Facts relevant for the decision of present revision petition are that petitioner-plaintiff filed a civil suit for permanent injunction against respondents-defendants on the ground that parties are co-sharers in the land in dispute and the same has not been partitioned by metes and bounds and, however, respondents-defendants are bent upon to carve out a colony in the suit land, which is agriculture in nature and hence, respondents-defendants Civil Revision No.7171 of 2010(O&M) -2- intend to change the nature of agricultural land into plots and therefore, it is prayed that respondents be restrained from changing the nature of the land without getting the same partitioned. On the similar facts, an application for ad interim injunction order has also been filed. Suit has been contested by respondents-defendants on the plea that petitioner-plaintiff is having no right to seek injunction against other co-sharers and that respondents-defendants are in exclusive possession of the land in dispute. Plea has been taken that land was privately partitioned between the parties, however, partition has not been given effect in the revenue record. Plea has also been taken that even plaintiff alongwith his brothers are in possession of the land measuring 4 bighas 18 biswas and he has also raised construction over the same and the rest of the land is in exclusive possession of the respondents-defendants and hence, respondents- defendants are having right to deal with the remaining land, in any manner. Learned trial Court allowed the application for ad interim injunction order filed by petitioner-plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code by observing as under:- “11. In view of the above discussion, this Court is of the considered view that the right of the plaintiff in the suit land is a valuable right and the defendants cannot be allowed to change the nature of the suit land without getting the same partitioned from a competent court of law by metes and bounds. As such, the injunction application filed by the plaintiff is allowed and the defendants are further restrained from changing the nature of the suit land from agricultural land into plots without getting the same partitioned from competent court of law. However, this order shall have no bearing on the merits of the case.” Respondents-defendants filed appeal against the said order before learned Additional District Judge, Karnal, which was allowed by him, thereby dismissing the application filed for ad interim injunction order by petitioner-plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code. It has been contended by learned counsel for the petitioner- plaintiff that learned first appellate Court has erred in observing that Civil Revision No.7171 of 2010(O&M) -3- petitioner-plaintiff has sought relief restraining respondents-defendants from raising construction over the land in dispute. Rather it has been contended that petitioner-plaintiff is having no objection, if respondents- defendants raise any construction on a portion of land in dispute for their own use as has been done by petitioner-plaintiff and, however, they are having no right to change the nature of the agricultural land by carving out a colony in the form of plots and by selling the same to different persons. It has been contended that as per entry in the jamabandi and Khasra Girdawari, the land in dispute is Chahi (irrigated) and the same is jointly owned by the parties, though they are in exclusive possession and however, the same has not been partitioned by metes and bounds. Hence, it is contended that respondents-defendants are having no right to change the nature of the said land by carving out a colony and by selling the same to different persons. On the other hand, it has been contended by learned counsel for the respondents-defendants that petitioner-plaintiff has also raised construction over the share of the land in his exclusive possession and hence, he is having no right to restrain the respondents-defendants to raise construction over the same. Therefore, it is contended that they, being co- owners, are having every right to use the property in their exclusive possession, in any manner, they like. Law is well settled that appellate Court in appeal filed against the order passed by learned trial Court in its discretion on application under Order 39 Rules 1 and 2 read with Section 151 of the Code can interfer only if an exceptional case is made out. In the present case, prima facie the land in dispute is joint of the parties. The same has also been recorded as irrigated land (Chahi ) in the revenue record. Admittedly the same has not been partitioned by metes and bounds, though parties are in exclusive possession of the specific portions. Petitioner-plaintiff has also constructed a farm house in portion of the land in his possession. He is having no objection if respondents-defendants also raise construction over the portion in their possession for their use. He has only sought relief of injunction restraining respondents-defendants from changing the nature of the land in dispute by carving out a colony and by selling the plots to third parties on the plea that prejudice would be caused to him at the time of partition. Hence, learned trial Court in its discretion Civil Revision No.7171 of 2010(O&M) -4- restrained respondents-defendants from changing the nature of the property in dispute, without getting the same partitioned from a competent court of law by metes and bounds. Learned appellate Court has set aside the said order by accepting the appeal, without any cogent reasons. In view of these facts, I am of the view that illegality and material irregularity has been committed by learned appellate Court in passing the impugned order and a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Hence, the present revision petition is accepted. Impugned order passed by learned appellate Court is set aside and the order passed by learned trial Court is restored. However, it is made clear that nothing observed herein shall be construed to have any bearing on the decision of this case on merit by learned trial Court. 3.5.2011 (Ram Chand Gupta) meenu Judge