Civil Revision No.4829 of 2009 - 1 - ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4829 of 2009 Date of decision:21.09.2010 Balraj ...Petitioner Versus Harinder and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Alok Jain, Advocate, for the petitioner. Mr. Lokesh Sinhal, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. This revision has arisen from an order passed by learned Additional District Judge, Faridabad dated 25.07.2009 passed in Civil Miscellaneous Appeal filed against order of learned Additional Civil Judge (Senior Division), Faridabad dated 26.03.2007 by which plaintiffs' application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 [for short “CPC”] was dismissed. The relevant facts for disposal of the present revision petition are that the plaintiffs, namely Harinder, Dharmender, both sons of Govind Ram and Dayawati widow of Govind Ram, filed the present Suit No.402 on 20.11.2006 against Jai Pal, Chander alias Bhagat Ji, Rakam Singh, all Civil Revision No.4829 of 2009 - 2 - ****** sons of Dal Chand, Kartar, Balraj, both sons of Jai Pal and Gian Chand son of Ram Deva, for permanent injunction restraining the defendants from interfering in their peaceful possession over the land falling in Khewat No.183, Khatauni No.288, Rect. No.9, Killa No.1/2(3-15), 2(8-0), 9/1(2- 3), total measuring 13 Kanals 18 Marlas, situated within the revenue estate of village Sidhola, Tehsil and District Faridabad [for short “property in dispute”] on the ground that they are owners in possession of the said land by virtue of sale deed dated 27.05.2005. It was alleged that plaintiff Nos.1 and 2, namely, Harinder and Dharmender both sons of Govind Ram, had purchased the property in dispute on 27.05.2005 vide sale deed bearing Vasika No.2875 from Gian Chand (defendant No.6) and Dayawati widow of Govind Ram had purchased leasehold rights from Gian Chand vide lease deed dated 27.05.2005 bearing Vasika No.2874. The names of plaintiff Nos.1 and 2, who had purchased the property in dispute, were entered in the revenue record vide mutation Nos.996 and name of plaintiff No.3, who had purchased leasehold rights of the property in dispute, was entered in the revenue record vide mutation No.997. As a matter of fact, as per the pleadings of the parties, defendant No.1 Jai Pal was the owner of the property in dispute. Defendant No.4 Kartar and defendant No.5 Balraj are his sons. Defendant No.1 executed a lease deed dated 19.07.2001 in favour of defendant Nos.4 and 5. Defendant No.1 sold the property in dispute to defendant No.6 (Gian Chand) vide registered sale deed dated 28.06.2004 and defendant Nos.4 and 5 sold their leasehold rights in favour of defendant No.6 vide registered lease deed dated 28.06.2004. Vide registered sale deed dated 27.05.2005, defendant No.6 sold his ownership right in the property in dispute to plaintiff Nos.1 and 2, whereas defendant No.6 also sold leasehold rights to plaintiff No.3 on 27.05.2005. Sale deed and lease deed dated 28.06.2004 were mutated in favour of defendant No.6 vide mutation Nos.994 and 995 on 22.07.2005, whereas sale deed dated 27.05.2005 (in favour of plaintiff Nos.1 and 2) and lease deed dated 27.05.2005 (in favour of plaintiff No.3) were mutated in favour of plaintiff Nos.1 to 3 vide Civil Revision No.4829 of 2009 - 3 - ****** mutation Nos.996 and 997 on 22.07.2005 respectively. However, vide its order dated 30.01.2006, the Collector, Faridabad set aside the mutation No.995 sanctioned in favour of defendant No.6. Defendant No.4 filed the Civil Suit No.685 of 18.08.2005 against defendant No.6 (Gian Chand) and defendant No.5 (Balraj) challenged the lease deed executed by him on 28.06.2004 in favour of defendant No.6. In the said Civil Suit No.685 of 18.08.2005 titled as `Kartar Singh Vs. Gian Chand and another' defendant No.4 (plaintiff in the said suit) has prayed for decree for declaration to the effect that lease deed dated 28.06.2004 bearing Vasika No.3717 is null and void and does not create any right, title or interest in favour of defendant No.6 and also for consequential relief of permanent injunction restraining the defendant No.6 from interfering in his peaceful possession. In the said suit, vide order dated 05.10.2005, the parties were directed to maintain status quo regarding the suit property. It is also pertinent to mention that in the said suit, an application dated 30.05.2006 under Order 1 Rule 10 of the CPC was filed by Kartar/defendant No.4 for impleading Dayawati (plaintiff No.3) as a party. The said application was allowed by the Trial Court on 13.09.2008 i.e. after the order of injunction dated 05.10.2005. Balraj (defendant No.5) also filed the Civil Suit No.605 on 03.06.2005 against Gian Chand (defendant No.6) and Kartar (defendant No.4) seeking declaration to the effect that lease deed dated 28.06.2004, bearing Vasika No.3717 is null and void and does not create any right, title or interest in favour of defendant No.6 with regard to the suit property and also sought consequential relief of permanent injunction. In the said suit, ex-parte injunction was granted by the learned Trial Court on 09.06.2005 restraining Gian Chand (defendant No.1 in the said suit) from interfering in peaceful possession of Balraj/defendant No.5 (plaintiff in the said suit). It also requires to be pertinently noticed that plaintiff No.3 Dayawati was also impleaded as party in the said Civil Suit No.685 of 03.06.2005 vide order dated 16.10.2007 passed on the application dated 29.05.2007 filed by Balraj/defendant No.5 under Order 1 Rule 10 of the CPC. The learned Trial Court dismissed the application filed by the Civil Revision No.4829 of 2009 - 4 - ****** plaintiffs for ad interim injunction on the ground that insofar as the sale of leasehold rights by defendant No.4 and 5 in favour of defendant No.6 (Gian Chand) are concerned, the same was effected on 28.06.2004 on the basis of which mutation No.995 was sanctioned on 22.07.2005. However, the said mutation No.995 was set aside by the Collector, Faridabad by virtue of his order dated 30.01.2006. It was, thus, observed by the learned Trial Court that due to cancellation of mutation No.995, the plaintiffs neither have prima facie case nor balance of convenience and irreparable loss in their favour. They were, however, given the liberty to become a party in the Civil Suit No.605 of 2005 filed by defendant No.5 (Balraj). The order of the learned Trial Court was reversed by the learned Appellate Court by observing as under: - “At this stage, it is to be seen as to who is in possession of suit land. The rights of parties would be determined after opportunity to lead evidence to both the parties and on the basis of evidence placed before the Court. The party in possession will be entitled to protect its possession during pendency of trial. As regards defendant No.4 except for bald assertion that lease deed dated 28.06.2004 is false, fabricated and result of fraud, misrepresentation and collusion no other material has been placed to substantiate the said arguments. Lease deed dated 28.06.2004 executed by defendant No.4 and lease deed dated 27.05.2005 by defendant No.6 in favour of plaintiff No.3 are registered documents. In both the lease it is clearly asserted that possession of land has been duly given to lessees. Prima facie, it is clear that in pursuance of lease deed it is plaintiffs who are in possession of suit property. The factum of sale deeds and lease deeds have Civil Revision No.4829 of 2009 - 5 - ****** been duly recorded in revenue record. Even as per settlement at Police Post Jaisana defendants had agreed not to cultivate land and had agreed that plaintiffs would cultivate the land clearly establish that it is plaintiffs who are owner in possession of disputed land. Prima facie from the facts it appears that lease deed dated 19.07.2001 is an agricultural land, defendant No.1 was owner of land, defendants No.4 and 5 are his sons. Lease deed dated 19.07.2001 has not been placed on record as to show reason for executing lease deed in favour of minor son (as being claimed by defendants). Defendant No.1 has neither pleaded nor placed any material to prima facie show that he was unable to cultivate land and even if date of birth of defendant No.5 as being claimed i.e. 05.09.1990 is taken as gospel truth even then defendants have failed to show as to why lease of agricultural land was got executed in favour of minor boy of 11 years specially when his father was owner of said land, alive and without any disability. From above noted facts prima facie, it appears that lease deed dated 19.07.2001 was a paper transaction which was executed without there being any intention to act upon. Plaintiffs have prima facie established their possession over suit land. Even if for sake of argument it is presumed that defendant No.5 was minor and that lease deed executed by him was void ab- initio even then as plaintiffs have succeeded to prove their possession over suit land and once plaintiffs have successful to prima facie establish their Civil Revision No.4829 of 2009 - 6 - ****** possession they are entitled to injunction. The plaintiffs cannot be denied injunction by pre- empting final result of case especially when lease deed dated 19.07.2001 has also been challenged. In view of above discussion, I am of the view that plaintiffs have succeeded in establishing prima facie case and balance of convenience in their favour. If stay is not granted he would suffer irreparable loss. On the basis of aforesaid reasoning, the learned First Appellate Court restrained the defendants from interfering in peaceful possession of the plaintiffs. Aggrieved against the aforesaid order, the petitioner/defendant No.5 alone has filed this revision petition, in which, on 26.08.2009, following order was passed by this Court: - “The counsel for the petitioner has submitted that earlier a suit was filed by the petitioner bearing No.148 dated 03.06.2005 titled Balraj V. Gian Chand and Kartar Singh filed Civil Suit No.614 dated 18.08.2005, titled Kartar Singh V. Gian Singh. He has further submitted that the first suit is pending in the Court of Civil Judge (Sr Division), Faridabad and an ex-parte injunction order was passed in favour of the petitioner, in that suit, on 09.06.2005 and the application under Order 39 Rules 1 and 2, has not yet been decided on merits. He has further submitted that the second suit is pending in some other Court of Civil Judge at Faridabad. He has further submitted that in that suit, an ex-parte order directing the parties to maintain status quo with regard to the suit property was passed in 2005, Civil Revision No.4829 of 2009 - 7 - ****** but the application under order 39 Rules 1 and 2 CPC has not been decided on merits. The files of both aforesaid suits be requisitioned for 14.09.2009. The District & Sessions Judge shall also go through the files and send a detailed report, as to why the applications under Order 39 Rules 1 and 2 C.P.C. have not been decided, on merits, for the last more than four years, in complete transgression of the provisions of law. She should also specifically indicate, as to who is at fault, in delaying the disposal of the applications. The report shall be sent along with the files for further necessary action in the matter. The Registry is directed to comply with the order immediately by all modes of communication.” Thereafter, notice of motion was issued on 06.10.2009. In response to the order dated 26.08.2009 of this Court, learned District and Sessions Judge, Faridabad had sent the case files of Civil Suit No.605 dated 03.06.2005 titled as `Balraj Singh Vs. Gian Chand and others' and Civil Suit No.685 dated 18.08.2005 titled as `Kartar Singh Vs. Gian Chand and another' along with record of the present suit to this Court. The report of the learned District and Sessions Judge, Faridabad dated 01.10.2009 reads as under: - “Kindly refer to Hon'ble High Court's letter No.6207/J.16 dated 17.09.2009 on the subject noted above. 2. The undersigned had been directed to send a report in two suits i.e. suit no.605 dt. 3.6.2005 titled Balraj Singh vs. Gian Chand and others and suit no.685 dt. 18.08.2005 titled Kartar Singh Vs. Civil Revision No.4829 of 2009 - 8 - ****** Gian Chand and others. The suit titled Balraj Vs. Gian Chand is pending for 13.10.2009. Suit titled Kartar Singh vs. Gian Chand etc. is pending for 05.10.2009 for summoning the newly impleaded defendant Daya Wati. 3. A perusal of the record shows that Balraj and Kartar Singh sons of Jai Pal instituted two separate suits on 03.06.2005 and 18.08.2005 respectively challenging the lease deed dt. 28.06.2004. 4. In the suit filed by Balraj, defendant no.1 who was the main contesting defendant was proceeded exparte as he failed to appear and Shri Pushpinder Yadav, the then Civil Judge (Jr. Divn.), Faridabad granted stay and adjourned the case for exparte evidence. The stay remained in operation and the stay is still continuing. No application for vacation of the stay or for its confirmation had been filed. Defendant No.1 moved an application for setting aside the exparte order on 25.07.2005. On the next hearing the case had been transferred to the Court of Sh. Amarjit Singh, the then Civil Judge (Jr. Divn.), Faridabad. The exparte order against defendant No.1 was set aside on 24.10.2006 and the case was adjourned for consideration on the stay application for 08.03.2007 and this was the first date on which arguments on the stay application could have been heard but the order reads that arguments were not advanced and adjournment had been requested which had not been opposed and the matter was adjourned for 29.05.2007. Civil Revision No.4829 of 2009 - 9 - ****** Thereafter the Officer was transferred and Shri R.P.Singh, civil Judge (Jr. Divn.) took over and the case remained pending in his Court up to 09.06.2008. In my humble view the arguments could only be heard only after defendant no.1 had submitted the written statement and reply to the stay application but perhaps neither of the parties pressed for arguments as the stay order granted on the first date was continued. The stay application filed in the case of Balraj vs. Gian Singh could have been disposed of by Shri R.P. Singh, the then Civil Judge (Jr. Divn.), Faridabad. 5. Kartar Singh, real brother of Balraj had filed a separate suit on 18.08.2005 praying that the lease had been obtained by defendant No.1 by playing fraud. He had sought injunction against defendant No.1. He had arrayed his real brother as defendant No.2. Sh. P.K.Lal, Civil Judge (Jr. Divn.), Faridabad had directed the parties to maintain status quo on 05.10.2005. On that day appearance had been put in on behalf of defendant No.2 while the summons sent to defendant No.1 were received with a report that he had not been personally served and there was `through service'. Registered covers were sent and ultimately service was effected on defendant No.1 in December, 2005 and the status quo order was ordered to be continued. Defendant No.1 filed his written statement on 21.04.2006 and the case was fixed for consideration on stay application but plaintiff filed an application under Order 1 Rule 10 CPC for impleading the persons Civil Revision No.4829 of 2009 - 10 - ****** to whom defendant no.1 had transferred Pattedari and ownership rights. The status quo order was ordered to continue on all the dates and is still continuing. 6. In my humble view the stay application could have been disposed of once the written statement and reply to the stay application had been filed in April, 2006 but the Court had noted that the arguments had not been advanced. Sh. P.K.Lal, Civil Judge (Jr. Divn.), Faridabad could have disposed of the application. The case remained pending before him up to 08.05.2007. The officers who had joined thereafter had disposed of the application under Order 1 Rule 10 CPC and the case is now posted for service upon the newly added defendants. It is requested that the report and the files of cases Balraj Singh Vs. Gian Chand and Kartar Singh Vs. Gian Chand enclosed with this report may please be urgently sent to the Hon'ble Court as the matter is fixed for 06.10.2009.” Learned counsel for the petitioner has vehemently argued that the impugned order suffers from material irregularity and illegality and is liable to be set aside because the learned lower Appellate Court has erred in observing that the stay order dated 09.06.2005 granted in Civil Suit No.605 of 03.06.2005 titled as `Balraj Singh Vs. Gian Chand and others' is not binding upon respondent No.1 to 3 because respondent No.3 (Dayawati) was not a party in the said Civil Suit, whereas she was impleaded as a party and is contesting the said Civil Suit. Plaintiffs Nos.1 and 2, being her sons, are also bound by the stay order even if they were not the parties in the said suit. It was also alleged that the petitioner Balraj was a minor at the time of execution of the lease deed, therefore, the Civil Revision No.4829 of 2009 - 11 - ****** learned lower Appellate Court has erred in discarding the said lease deed dated 28.06.2004 by observing that it was a paper transaction. It is also argued that the learned lower Appellate Court has erred in ignoring the order dated 30.01.2006 passed by the Collector cancelling mutation No.995 regarding lease deed dated 28.06.2004, which has not been challenged by the present respondents/plaintiffs in accordance with law. The lower Appellate Court has erred in holding that the order of the Collector, Faridabad is not binding upon the respondents/plaintiffs as they were not the party to the same. On the contrary, learned counsel for the respondents/plaintiffs has submitted that insofar injunction order dated 09.06.2005 granted in Civil Suit No.605 of 03.06.2005 titled as `Balraj Singh Vs. Gian Chand and others' is concerned, none of the plaintiffs were parties to the said suit at the time of granting of injunction order as Dayawati/plaintif No.3 was ordered to be impleaded as party in the said suit only on 16.10.2007. In the another Civil Suit No.685 of 18.08.2005 `Kartar Singh Vs. Gian Chand and another' in which status quo has been ordered to be maintained by the defendants on 05.10.2005 in which plaintiff No.3 (Dayawati) had become a party to the suit on 13.09.2008 much after the order of injunction. It is also pertinent to mention here that Kartar Singh had not claimed himself to be a minor except for Balraj who has filed the present revision petition. It is also submitted that lease deed in favour of Balraj is only a paper transaction because Balraj was born on 07.09.1990 and lease deed in his favour by defendant No.1 is dated 19.07.2001, meaning thereby he was only 11 years of age at the time of execution of said lease deed in his favour. Since the petitioner was a minor at the time of execution of lease deed in his favour being 11 years of age, it cannot be believed that the father of the petitioner would execute the lease deed in his favour for actual purposes and was not meant as a paper transaction. I have heard both learned counsels for the parties and have perused the record with their able assistance. No doubt that defendant No.1 was owner of the property in Civil Revision No.4829 of 2009 - 12 - ****** dispute. He has two sons, namely Kartar and Balraj, in whose favour the property in dispute was leased out and the ownership rights thereof were sold to defendant No.6, who further sold his ownership rights to plaintiff Nos.1 and 2. Defendant Nos.4 an 5 had sold their leasehold rights to defendant No.6, who sold it further to plaintiff No.3. The question arises for consideration in this case is as to “whether injunction granted in the earlier two suits in favour of the petitioner and his brother Kartar would have any effect on the injunction being sought in the present case”. The Civil Suit No.605 of 03.06.2005 was filed by Balraj S/o Jai Pal against Gian Chand and Kartar Singh. In the said suit, defendant No.1 (Gian Chand) was proceeded against ex-parte, whereas defendant No.2 Kartar Singh is the real brother of Balraj. In the said suit, on 09.06.2005, the learned Trial Court had passed the following order:- “Present: Shri G.K.Budhiraja, Adv. for the plaintiff. None for defendant No.1. ***** Summons issued to the defendant No.1 received back served. Case called several times since morning. But none has appeared on behalf of defendant No.1 up to 12.30 p.m. Waited sufficiently. Hence, defendant No.1 is hereby proceeded against ex-parte. Now, to come up on 10.12.2005 for ex-parte evidence of the plaintiff. Ex-parte injunction prayed for. Since, the plaintiff is stated to be minor, hence, in the light of case law Lakhwider Singh Vs. Miss Paramjit Kaur 2003(4) RCR (Civil) 26, relied upon by the plaintiff, defendant No.1 is restrained from interfering into the peaceful possession of the plaintiff over the suit land. Civil Revision No.4829 of 2009 - 13 - ****** However, proforma defendant No.2 be also summoned for the date fixed on filing of PF etc.” After the ex-parte injunction, an application was filed by defendant No.1 (Gian Chand) for setting aside ex-parte order dated 09.06.2005 in which notice was issued and on 24.10.2006, following order was passed: - “Present: Shri G.K.Budhiraja, Adv. for the plaintiff. Sh. Rajpal Nagar, Adv. for applicant/defendant. ***** Ld. counsel for the plaintiff has endorsed his no objection on the application for setting aside ex-parte order dated 09.06.2005. Heard. In view of the no objection made by the Ld. counsel for the plaintiff, application for setting aside ex-parte order dated 09.06.2005 passed against the defendant is hereby allowed and ex-parte order dated 09.06.2005 passed against the defendant is hereby ordered to be set aside, subject to payment of Rs.500/- as cost. Cost not paid. To come up on 16.11.2006 for payment of cost as well as for filing of written statement.” Thereafter, the plaintiff Balraj had filed an application under Order 1 Rule 10 of the CPC dated 08.05.2007 in order to implead Dayawati Wd/o Gobind Ram as defendant. The said application was allowed on 16.10.2007, in which the following order was passed: - “Present: Sh. G.K.Budhiraja, Adv. for the plaintiff. Sh. Rajpal Nagar, Adv. for the defendant. ***** Civil Revision No.4829 of 2009 - 14 - ****** Ld. counsel for the defendnat has endorsed his no objection upon the application u/o 1 rule 10 CPC moved by the plaintiff. Heard. In view of the no objection endorsed by the Ld. counsel for the defendant, application u/o 1 Rule 10 CPC is hereby allowed. To come up on 15.11.2007 for filing of amended plaint.” Since thereafter, the Civil Suit No.605 of 03.06.2005 titled as 'Balraj Singh Vs. Gian Chand and others' was adjourned for one reason or other, but there is no injunction order. After the suit filed by Balraj, his brother Kartar Singh, who was not alleged to be minor, filed Civil Suit No.685 of 18.08.2005 against Gian Chand and Balraj. In his suit also, Gian Chand was proceeded against ex-parte and on 05.10.2005, following order was passed: - “Present: Sh. Ravinder Gupta, Advocate, for the plaintiff. Sh. G.K.Budhiraja, Advocate, for the defendant. ***** Defendant No.2 served. Vakalatnama filed on behalf of him. However, summon received back in respect to defendant No.1 with endorsement of through service. However, none appeared on behalf of defendant No.1. Learned counsel for the plaintiff pleaded for ad-interim order in favour of the plaintiff and stated that if defendants are not restrained the very purpose of this suit will become infructuous. Keeping in view all the facts together the case is adjourned for 09.11.2005 for service of defendant No.1 through registered R.C. Cover subject to filing of process fee etc. Written statemetn and reply be filed on behalf of Civil Revision