C.R. No.53 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.53 of 2009. Date of decision:- 28.01.2009. Devender Kumar ...Petitioner Versus Som Nath @ Som Parkash ...Respondent CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. Vinod Gupta, Advocate for the petitioner. JASWANT SINGH J. The petitioner-plaintiff Devender Kumar has filed the present revision petition under Section 115 of the Code of Civil Procedure for setting aside the impugned orders dated 02.09.2006 and 03.09.2008 passed by learned Additional Civil Judge (Senior Division) Guhla and learned Additional District Judge, Kaithal respectively vide which his application under Order 39 Rules 1 and 2 of the Code of Civil Procedure has been dismissed and affirmed in appeal respectively. Petitioner-plaintiff filed a suit for declaration to the effect that he is owner in possession of the suit land upto the extent of ½ share and the defendant be restrained from dispossessing/ousting the plaintiff from the suit land by way of sale, lease mortgage or gift deed etc. Alongwith the civil suit, he filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for seeking temporary injunction. It is alleged by the plaintiff in the suit that plaintiff alongwith defendant-respondent had been living together in a joint Hindu family and running a business with joint funds of the family and purchased property from the joint funds including the property in dispute, mentioned in para 1 of the plaint. C.R. No.53 of 2009 -2- It is further alleged that the property in dispute was purchased in the name of defendant by the plaintiff from the joint funds and the sale deed was executed in the name of defendant Som Nath @ Som Parkash, who is the real uncle of the plaintiff-petitioner. It is further pleaded that there was some family settlement dated 05.06.2005 and the plaintiff-petitioner has become owner in possession of ½ share of the suit property and as such the defendant is bound to transfer the said half share in the name of plaintiff-petitioner. It is further alleged that the defendant is owner of the disputed property as per the family settlement to the extent of ½ share only, hence, the present suit was filed. The defendant filed a detailed written statement and denied the averments made in the plaint. It is further alleged that the plaintiff has based his case on the forged and fabricated documents and there has been no concern under the name and style of M/s Devendra Sales and Purchase Agency, Cheeka and the family settlement dated 05.06.2005, is specifically denied. The learned Trial Court has declined to grant interim injunction in favour of the plaintiff-petitioner while dismissing the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and the appeal has also been dismissed by the learned Additional District Judge vide order dated 03.09.2008. Both the Courts below have taken note of the fact that there is a registered sale deed dated 19.07.1993 on record and through this sale deed, one Singha son of Shri Nathu son of Shri Nanak resident of Village Bhagal has sold the suit property exclusively in favour of defendant-respondent for a sale consideration of Rs.80,000/- (rupees eighty thousands only). Both the courts below have further recorded after perusal of the registered sale deed, referred to above, that actual physical possession was also delivered in favour of defendant- Som Nath @ Som Parkash. The sale deed does not indicate that the suit land was purchased in the name of defendant-respondent from the joint funds of the family and further, the sale deed has neither been challenged nor set aside by any competent court of law C.R. No.53 of 2009 -3- till date. The alleged family settlement dated 05.06.2005 is specifically denied by the defendant-respondent. So far as the family settlement is concerned, the learned Additional District Judge after going through the same has rightly observed in paragraph 8 of the impugned order dated 03.09.2008 that if the parties are not honouring the family settlement then the appropriate remedy for the aforesaid petitioner-plaintiff is to file a suit for specific performance, but in any case it cannot be termed that prima facie plaintiff is owner in possession of ½ share of the suit land. Moreover, the family settlement dated 05.06.2005 is not a registered document. Both the Courts below have rightly come to the conclusion that no prima facie case is made out in favour of the plaintiff-petitioner, which is the very basis and pre-condition for grant of temporary injunction and no balance of convenience lies in favour of the plaintiff-petitioner. After the amendment of the Code of Civil Procedure (Amendment) Act, 1999 w.e.f. 01.07.2002, the scope of Section 115 of the Code of Civil Procedure is very limited and this is not that case, which deserves interference in the discretion exercised by both the Courts below. There is neither any ground in the revision petition nor any point has been raised at the Bar to substantiate that how and in what manner both the Courts below have failed to exercise their jurisdiction or exceeded their jurisdiction. No merits. Dismissed with no order as to costs. January 28, 2009 (JASWANT SINGH) vj JUDGE