CR NO.5511/2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR NO.5511/2007(O&M) DATE OF DECISION: MAY 30,2009. Om Parkash .........Petitioner vs. Sanjeev Kumar ..........Respondent. CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr.Mani Ram Verma,Advocate for the petitioner. Mr.C.B.Goel,Advocate for the respondent. JASWANT SINGH,J. Petitioner-plaintiff has filed this revision petition under Article 227 of the Constitution of India challenging the order dated 13.10.2007 passed by the learned Additional District Judge, Panipat upholding the order dated 24.1.2007 passed by the learned trial Court, whereby the application under Order 39 Rules 1 and 2 CPC filed by him seeking injunction against respondent not to interfere in his peaceful possession was dismissed. Briefly stated the facts leading to the present revision petition are that on 30.1.2007 petitioner filed a suit for permanent injunction for restraining the respondent-defendant from illegally and CR NO.5511/2007(O&M) 2 forcibly dispossessing the petitioner from from the suit property ( four plots i.e. Plot no.2 measuring 889 sq. yards, plot nos.12,13 and 14 each measuring 209 square yards, total land measuring 1516 square yards). It was alleged by the petitioner that the suit property was part of a residential colony carved out by one Puran Chand son of Kali Ram and others, who were owners in possession of the certain land situated at Taraf Insar,Panipat. It was further alleged by the petitioner that he had purchased the suit property vide sale deed bearing Vasika No.1507 dated 9.8.1974 and since then he was in possession of the same. The dimensions of the suit property were given as North 130 feet, South 144 feet, East 99 feet and West 100 feet. It was further the case of the petitioner that some inhabitants of the locality illegally and unauthorisedly made a 15 feet wide passage on the northern side of the suit property, whereupon in order to avoid the dispute and to protect his property, petitioner constructed walls on northern and southern side of the suit property about seven/eight years ago (i.e. Around 1999-2000) and the same were repaired in the year 2003. According to the petitioner himself the owners of the land situated on eastern southern side of the suit property have raised their own construction. Thus, the suit property is encircled/bounded, i.e. it is having walls constructed by the petitioner on northern and southern side whereas on its eastern southern side exists construction raised by the owners of their land Further, the petitioner has constructed a shed on the northern-western corner and a shop on southern-western portion of the suit property. CR NO.5511/2007(O&M) 3 The petitioner has also got an electric connection for the shop constructed on the southern western side of the suit property. It was alleged that respondent-defendant in collusion with some strong and influential persons were bent upon to illegally and forcibly dispossess him from the suit property. With these averments the petitioner instituted the said suit for permanent injunction. Alongwith the suit he also filed an application under Order 39 Rules 1 and 2 CPC. Upon notice of the suit as well as injunction application respondent-defendant claimed himself to be owner in possession of the suit property measuring 1 bigha 4 biswas being 69/163 shares of total land measuring 2 bighas 18 biswas situated in khewat no.914, khasra nos.4328/1, 4328/2, and 4329/2 Patti Insar, Panipat. It was further stated that respondent-defendant had purchased the suit property for valuable consideration from Ravinder Kumar,Pawan Kumar and Anil Kumar sons of Shri Lal Chand vide registered sale deed bearing Vasika No.1717 dated 19.6.2006. It was further averred that the predecessor of the plaintiff namely Puran Chand had suffered a decree in favour of Lal Chand in case titled Lal Chand vs. Puran Chand, vide judgment and decree dated 26.9.1980 passed by Sub Judge Ist Class, Panipat, whereby the total land including the land mentioned in sale deed dated 9.8.1974 per vasika no.1507 filed by the plaintiff vested in said Shri Lal Chand and a mutation no.6982 dated 30.12.1980 was also entered. It was further the case of the respondent-defendant that the petitioner- plaintiff had not approached the court with clean hands as defendant is CR NO.5511/2007(O&M) 4 owner in possession of the property measuring 1 bigha 4 biswas whereas the plaintiff as per his own plaint and as alleged in the sale deed is owner of the land situated in khasra nos.4234, 4235 and 4327, Patti Insar, Indira Colony, Panipat and that the property of the plaintiff and defendant are quite away from each other. It was further averred by the respondent-defendant that at the instance of the police authorities a demarcation was carried out by the Tehsildar/Patwari after visiting the spot and as per that demarcation the property in respect of which the plaintiff is seeking injunction is part and parcel of the defendant's property. The learned trial court after going through the pleadings and other material available on record found that no prima facie case was made out in favour of the plaintiff and as such he was found not entitled to the relief of injunction. Aggrieved against the same, plaintiff filed an appeal which was also dismissed by the learned Additional District Judge. Hence the present revision petition. I have heard learned counsel for the parties. It is submitted by Mr.Verma that plaintiff-petitioner has produced sufficient documentary evidence viz. registered sale deed, electricity bills, akshra which prove that he is in possession of the suit property yet the learned courts below declined to grant injunction in his favour. It is further contended that the learned appellate court has erred in law in drawing comparison between the dimensions of the suit CR NO.5511/2007(O&M) 5 property as given in the registered sale deed and site plan attached with the plaint. It is also contended that the courts below have erred in law in relying upon the demarcation report allegedly got prepared at the instance of the police authorities as the same has been obtained by the respondent-defendant in collusion with the police and revenue authorities. On the other hand, the learned counsel for the respondent- defendant has stated that the learned courts below have rightly dismissed the injunction application of the petitioner as no prima facie case was made out or existed in favour of petitioner-plaintiff. After hearing the learned counsel for the parties and perusing the record, I find no merit in this revision petition and the same is liable to be dismissed. The entire controversy revolves around the possession of suit land falling in khasra nos.4234,4235 and 4327, which the petitioner claims to be in his possession. On the other hand the respondent claims to have purchased land comprised in khasra nos. 4328/1, 4328/2 and 4329/3 measuring 2 bighas 18 biswas, Patti Insar, Ram Nagar Part II, Panipat. The demarcation of the suit property, at the instance of the police authorities, had already been got done by revenue officers. Since learned counsel for the petitioner disputed the correctness of the demarcation report submitted by the revenue officers, a Coordinate Bench of this Court vide order dated 14.5.2008 appointed Sh.Arun Singla,Advocate as Local Commissioner, who was directed to CR NO.5511/2007(O&M) 6 visit the site and submit the necessary report after taking assistance from Tehsildar Panipat. In compliance with the aforesaid directions of this Court, Sh.Arun Singla,Advocate visited the disputed site and submitted his report after visiting the site on 21.5.2008. It is reported by the Local Commissioner that the revenue record of Patti Insar, in which the suit property is situated was burnt in a fire that took place in 1971 and the revenue officials prepared the site map of khasra nos.4327,4328,4234 and 4235 (Annexure A-1) on the basis of field book/shijra khishtwar. It has further been reported by the Local Commissioner that on physical verification he found one constructed shop on the corner of the disputed property which is in possession of the respondent-defendant. A perusal of the rough sketch of the suit property prepared by Local Commissioner on the spot reveals that three half constructed sheds also exist on the site, regarding whose ownership nothing is mentioned in the report of the Local Commissioner. It was further reported by the Local Commissioner that the disputed plot was having free access to the inhabitants of the locality and there was no gate existing on the plot. The crux of the report of the Local Commissioner is that except the shop which is in possession of the respondent-defendant, the possession over the remaining disputed plot could not be ascertained. Needless to mention that at the time of visit of the Local Commissioner, he was accompanied by the petitioner-plaintiff as well as respondent- defendant. The report of the Local Commissioner is not disputed by the CR NO.5511/2007(O&M) 7 learned counsel for the petitioner. Further, a perusal of the sketch plan of suit property marked with letters ABCD, attached by the plaintiff-petitioner show only one shop and one shed whereas as per the rough sketch (Annexure A/3) submitted by the Local Commissioner with his report shows one shop besides three incomplete sheds. Learned counsel for the petitioner has not been able to point out as to who constructed these sheds and when, if the suit property is in continuos possession of the petitioner-plaintiff since 1974. According to the case of the petitioner, as pleaded in the plaint he has only constructed one shop and one shed. The learned Additional District Judge on the basis of material available on record has noticed that the measurements and directions of the disputed property as mentioned in the site plan annexed with the plaint do not tally with the measurements and the directions given in the sale deed dated 9.8.1974. The discrepancies have been noticed in detail by the learned Additional District Judge, in para 7 of the impugned order dated 13.10.2007. Further a perusal of paras 9 and 10 of the impugned order dated 13.10.2007 passed by the learned Additional District Judge reveals that the plots of the plaintiff- petitioner are different than the plots of the defendant-respondent and petitioner has nothing to do with the same. It is in these circumstances that the learned courts below did not restrain the respondent from enjoying the possession over his own property. After perusing the entire material available on record i.e. CR NO.5511/2007(O&M) 8 The site plan attached with the plaint, the rough sketch (Annexure A/3) submitted by the Local Commissioner alongwith his report and the impugned orders, I am of the considered opinion, that the plaintiff has miserably failed to make out a case for grant of interim injunction in his favour. Accordingly,finding no merit in this revision petition the same is hereby dismissed. The interim order dated 10.12.2007 directing the parties to maintain status quo also stands vacated. The parties are directed not to alienate the suit property in any manner during the pendency of the suit without prior permission of the court. Further the learned trial Court is directed to expedite the disposal of the suit. Nothing stated hereinabove shall be taken as an expression of opinion on the merits of the case. 30.5.2009. (Jaswant Singh) joshi Judge