Civil Revision No.2616 of 2008 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: July 31, 2008 Gina Devi .....Petitioner VERSUS Ex.Sub.Sawan Ram ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.R.M.Singh, Advocate, for the petitioner. **** RANJIT SINGH, J. The application filed by the petitioner under Order 39 Rule 1 & 2 was declined by the trial Court as well as by the Lower Appellate Court. She has accordingly filed this revision petition. The petitioner-plaintiff purchased a plot on 29.10.1985. She claims to be owner in possession of the same. The defendant had purchased a piece of land adjoining the plot. The petitioner pleads that the defendant had encroached upon the portion of her Civil Revision No.2616 of 2008 : 2 : plot. It is further stated that the petitioner had differences with the earlier owner and area was got demarcated. The present defendant now is neither disclosing his sale deed nor the fact that as to how much area he has purchased and has thus threatened to encroach upon the land of the petitioner. Seeing the efforts on the part of the defendant to encroach upon this plot, a complaint was also made to the police and proceedings under Section 107/151 Cr.P.C. were also lodged. The petitioner ultimately filed a suit for mandatory injunction for direction to the defendant to hand over the vacant possession of the encroached land and further sought injunction for restraining the defendant from alienating the land either by way of sale or mortgage. Respondent-defendant contested the suit and the application filed by the petitioner under Order 39 Rule 1 & 2 CPC. He has raised a preliminary objection that suit for mandatory injunction was not maintainable and also that the petitioner has wrongly been claiming the area. He further pleads that the petitioner could file a suit for partition. Allegation further is that the petitioner had rather encroached the land of the respondent-defendant. The Appellate Court found that petitioner is claiming a decree of mandatory injunction for handing over the possession of the area allegedly encroached by the respondent-defendant. It is viewed that suit for mandatory injunction is not maintainable and appropriate remedy for the petitioner would be to file a suit for possession. On this basis, the prayer of the petitioner for interim injunction has been declined. Even on merits, it is found that the petitioner has no good prima facie case in her favour. The site plan Civil Revision No.2616 of 2008 : 3 : has been filed by the petitioner showing her plot to be 135 feet, whereas sale deed in her favour would show that the width of the southern side of the plot of the plaintiff was 126 feet 5 inches. Accordingly, it is observed that the petitioner cannot have the area as she has claimed and, thus, there is no prima-facie case in her favour. It is further seen that the demarcation of the plot was also carried out on an application moved by the petitioner. The demarcation had shown that the petitioner or her husband had encroached upon the area of other persons. Copy of Calendra in this regard has also been referred to. The primary grievance of the petitioner is that the courts, at the very initial stage, have held that the suit for mandatory injunction is not maintainable, which would prejudice the entire suit which the petitioner has filed. It is in this context, the petitioner was asked to show if the suit for mandatory injunction for claiming possession could be maintained. The petitioner has, in this regard, relied upon the observations made by this court in the case of Kamlesh and others Vs. Jasbir Singh, 2004(2) The Punjab Law Reporter 176, Salochna Devi and another Vs. Jagat Singh, 2000(2) Punjab Law Reporter 643 and Doctor Parshotam Kumar (dead) through L.Rs. Vs. Brij Bhushan Lal (dead) through L.Rs., 2005(3) Punjab Law Reporter 652. I have perused the judgments referred to by the counsel for the petitioner. In Salochna Devi's case (supra), suit for mandatory injunction was filed when direction was issued to vacate the residential house. The ratio of this case would not apply as in the present case the petitioner has filed a suit for mandatory Civil Revision No.2616 of 2008 : 4 : injunction to be put in possession. Similarly, in the case of Doctor Parshotam Kumar (supra), direction was to the defendant to vacate the portion of a house, which was challenged by filing suit for mandatory injunction. In such circumstances, suit for mandatory injunction would certainly be maintainable, but where prayer is to obtain possession, suit for possession apparently would be appropriate remedy. The petitioner, thus, has not been able to show that suit for mandatory injunction would be maintainable to get possession of a plot, even if it be an encroachment. The observation in regard to the maintainability of the suit is made prima-facie only to dispose of the application for interim injunction and it would still be open for the petitioner to show that suit for mandatory injunction is maintainable. On merits, the petitioner could not show any prima- facie case in her favour and thus the prayer for interim injunction was declined. No case for any interference is made out. The revision is accordingly dismissed. July 31, 2008 ( RANJIT SINGH ) ramesh JUDGE