C.R. No. 773 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 773 of 2010 Date of Decision: 09.07.2010 Net Ram Dagar .... Petitioner Versus Avadh Raj Singh and others ... Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present :- Mr. Lokesh Sinhal, Advocate for the petitioner Mr. Adarsh Jain, Advocate for the respondents 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) 1. Petitioner/defendant No. 7 has invoked jurisdiction of this Court under Article 227 of the Constitution of India assailing order dated 3.11.2009 passed by learned Civil Judge (Jr. Divn.) Faridabad and order dated 23.1.2010 passed by ADJ Faridabad whereby both the Courts below allowed the application filed by plaintiff/respondent No. 1 under Order 39 Rule 1 and 2 CPC thereby directing both the parties to maintain status quo regarding possession, construction over the suit property till the final decision of the suit. 2. The brief facts of the present case are that plaintiff (respondent No. 1 herein) filed a civil suit seeking partition, declaration and permanent injunction in the Court of Civil Judge (Jr. Divn.) Faridabad contending therein that late Sh. Brij Raj Singh was C.R. No. 773 of 2010 2 owner of the property in dispute; Property in dispute was subject matter of litigation between Brij Raj Singh and Sewak Ram; Case went upto Supreme Court in Civil Appeal No. 3903 of 1982; Supreme Court had decided Civil Appeal No. 3903 of 1982 vide judgment dated 22.4.1999 declaring the plaintiff and defendants No. 1 to 6 being the legal heirs of Brij Raj Singh, owner of the property in question; Plaintiff and defendants No. 1 to 6 are the co-owners of the property in dispute; Plaintiff has 1/5th share in the property in dispute; Defendant No. 1 filed a suit for permanent injunction against the plaintiff and other legal heirs of deceased Brij Raj Singh and obtained a decree dated 18.12.2001 from the Court of Civil Judge (Jr. Divn.) Faridabad fraudulently in order to grab share of plaintiff and defendants No. 2 to 6; After having knowledge of the ex-parte decree dated 18.12.2001 application under Order 9 Rule 13 CPC was moved by the plaintiff and defendants No. 2 and 3 for setting aside ex-parte decree dated 18.12.2001; Defendant No. 1 in the strength of ex-parte decree dated 18.12.2001 has sold an area of 342 sq. yards of land illegally and unauthorizedly in favour of defendant No. 7 vide sale deed dated 10.9.2002; Defendant No. 7 started raising construction over the suit property in the garb of sale deed dated 10.9.2009; Application moved by the plaintiff and defendants No. 2 and 3 under Order 9 Rule 13 for setting aside the ex-parte decree dated 18.12.2001 was dismissed as withdrawn on 6.10.2003; Defendant No. 7 has absolutely no right to raise construction over any part of the property in dispute in the garb of sale deed dated 10.9.2002; decree dated 18.12.2001 is null and void. 3. Claim of the plaintiff was refuted by defendant No. 7. It is C.R. No. 773 of 2010 3 contended by defendant No. 7 that he is the bonafide purchaser vide sale deed dated 10.9.2002 from defendant No. 1; Vide decree dated 18.12.2001 learned Civil Judge (Jr. Divn.) Faridabad had issued permanent prohibitory injunction against the plaintiff and defendants No. 2 to 6 not to make any interference in the peaceful and sole possession of the defendant No. 1; defendant No. 7 has purchased the property to the extent of 342 sq. yards; Defendant No. 7 after getting the map approved started construction over the property purchased by him bonafidely, plaintiff has no right over the property purchased by defendant No. 7. 4. Both the Courts below found that Supreme Court has declared Brij Raj Singh, owner of the property; plaintiff-defendants No. 1 to 6 are the co-owners of the property in dispute being legal heirs of Brij Raj Singh. It was further observed by both the Courts below that ex-parte decree dated 18.12.2001 is subject matter of the suit, hence, any sale deed made in favour of defendant No. 7 in the garb of decree dated 18.12.2001 does not create any title in favour of defendant No. 7, hence, defendant No. 7 can not be permitted to raise construction over the property in dispute. Feeling aggrieved defendant No. 7 is assailing orders of both the Courts below by way of present petition. 5. Learned counsel for the petitioner stated that he has bonafidely purchased property from defendant No. 1 who was armed with the decree dated 18.12.2001 passed by competent Court. He further states that decree dated 18.12.2001 still stands good. Petitioner/defendant No. 7, after getting the map sanctioned started raising construction over the property purchased by him which was C.R. No. 773 of 2010 4 all of sudden stopped by both the Courts below. Petitioner/defendant No. 7 is suffering ir-reparable loss by stopping the construction. 6. Learned counsel for respondent No. 1-plaintiff argued that decree dated 18.12.2001 is out come of fraud, hence, defendant No. 7/petitioner has acquired no right over the property in dispute pursuant to the sale deed dated 10.9.2009 executed by defendant No. 1 in the garb of decree dated 18.12.2001. 7. Having heard both the counsel and having perused the record, in the opinion of this Court there are certain undisputed facts i.e. (i) Present defendant No. 1 has filed suit being Case No. 81 of 2001 on the file of Civil Judge (Jr. Divn.) Faridabad against Avadh Raj Singh – plaintiff herein, Bharat Rattan, Vidhya Rattan and Swantra Kumar. (ii) Suit No. 81 of 2001 was decreed in favour of plaintiff (defendant No. 1 herein) vide judgment and decree dated 18.12.2001. Learned Civil Court has held that there is a valid Will in favour of plaintiff (dfendant No. 1 herein) executed by Brij Raj Singh – father of the plaintiff (defendant No. 1 herein). (iii) Vide judgment and decree dated 18.12.2001 present plaintiff and defendants No. 1 to 6 were restrained not to interfere in the sole possession of plaintiff (defendant No. 1 herein) (iv) Having obtained the decree dated 18.12.2001 on the basis of Will of father – Brij Raj Singh, Pardhuman C.R. No. 773 of 2010 5 Singh – defendant No. 1 herein executed one sale deed in favour of petitioner (defendant No. 7 herein) on 10.9.2002 thereby transferring 342 sq. yards land to defendant No. 7. (v) Present plaintiff and defendants No. 2 and 3 moved an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree dated 18.12.2001 which was subsequently withdrawn by them on 6.10.2003 thereby allowing ex-parte decree dated 18.12.2001 to attain finality. Present suit was filed by plaintiff after 6 years in the month of June, 2009 from the date of withdrawl of application under Order 9 Rule 13 on 6.10.2003. Decree dated 18.12.2001 still stands good and has not been set aside as yet. 8. In view of the above undisputed fact, this Court is of the opinion that petitioner/defendant No. 7 is the owner of the property measuring 342 sq. yards of land purchased by him vide sale deed dated 10.9.2002 from defendant No. 1 Pardhuman Singh. This Court further finds that in the event of withdrawl of application under Order 9 Rule 13 CPC on 6.10.2003 present suit challenging the ex-parte decree dated 18.12.2001 is not maintainable and is barred by principle of waiver, estoppel and resjudicata. In the opinion of this Court decree dated 18.12.2001 has attained finality in view of the withdrawl of the application under Order 9 Rule 13 CPC on 6.10.2003. 9. In the opinion of this Court there seems to no prima facie C.R. No. 773 of 2010 6 case in favour of the plaintiff. In the event of restraining the petitiner/defedant No. 7 to complete his construction, defendant No. 7 will suffer irreparable loss in comparison to the plaitniff. Balance of conveinance also seems to in favour of defendant No. 7. 10. The present petition is allowed. Impugned orders are set aside. Defendant No. 7 shall raise construction over the portion purchased by him at his own risk subject to the final decision of the suit. It is further made clear that any observation made by this Court or by the Courts below are for the purpose of deciding the ad interim injunction application only. (ALOK SINGH) 09.07.2010 JUDGE reena