Civil Revision No. 6000 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6000 of 2011 (O&M) Date of Decision: September 29th,2011 Moti Ram ... Petitioner Versus Hissam and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. O.P.S.Tanwar, Advocate, for the petitioner. VIJENDER SINGH MALIK, J. This is a revision petition brought by the plaintiff under the provisions of Article 227 of the Constitution of India for setting aside the order dated 28.5.2011 passed by Additional District Judge, Kurukshetra, vide which the appeal of respondents No. 2 and 3 had been accepted and the application under Order 39 Rules 1 and 2 CPC had been dismissed. Claiming that the plaintiff – Moti Ram and the heirs of his brother Rati Ram were owners in possession in equal shares of the property bearing khasra no. 666 measuring 5 marlas situated in village Amin, Tehsil Thanesar, District Kurukshetra, the defendants are alleged to have colluded with each other and are intending to raise further construction therein without the consent of the plaintiff, Civil Revision No. 6000 of 2011 2 .. want to alienate the same and want to collect rent of the shops from defendant No. 4 exclusively. They are further claimed to have colluded with each other to dispossess the plaintiff from the suit land forcibly. It is also claimed that they are even planning to sell the suit property to some strangers. The defendants resisted the prayer for ad-interim injunction restraining the defendants from doing the aforesaid acts. Defendants No. 1 to 3 had claimed that the property had been partitioned between the plaintiff and Rati Ram by way of family settlement in the life time of Rati Ram and in that family settlement, the suit property fell to the share of Rati Ram while Moti Ram had received another property on which he has constructed a kothi. It is further averred that defendants No. 1 to 3 are in possession of suit property as owners and are using the same. The plaintiff is denied to have a prima facie case in his favour. Hearing learned counsel for the parties, learned trial court found the plaintiff to have a prima facie case in his favour. He also found that the property between the parties is joint which is yet not partitioned between them. The application was, therefore, allowed. Dissatisfied with the said decision, Rajbir and Surender Kumar sons of Rati Ram, the defendants, filed an appeal. It had been heard by Additional District Judge, Kurukshetra, who had accepted the appeal vide judgment dated 28.5.2011. Aggrieved by the said judgment of learned Additional District Judge, Kurukshetra, the plaintiff Moti Ram has brought this Civil Revision No. 6000 of 2011 3 .. revision petition. I have heard Shri O.P.S.Tanwar, learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner has submitted that revenue record relating to the suit property speaks that the land in question is joint. According to him, it is a land bearing khasra number and till this property is partitioned, the plaintiff is to be deemed to be in joint possession thereof. He has cited in this regard the Full Bench decision of this Court in Bhartu Vs. Ram Sarup 1981 PLJ 204. He has also cited before me Sandeep Kumar Vs. Satish Kumar 2010 (2) R.C.R. (Civil) 18, where the property purchased jointly had not been partitioned between the co-sharers and it was held that one of them could not be said to be in exclusive possession over a portion of the land. Learned counsel for the petitioner has further submitted that learned appellate court was not justified in believing the plea of partition of the suit property. According to him, even the claim of the tenant that he is a tenant under defendants No. 2 and 3 was also not to be relied upon. According to him, telephone connection and electrical connections are usually taken in the name of one person and that would not prove any partition. According to him, learned trial court had rightly found prima facie case in favour of the petitioner while learned appellate court has taken into consideration extraneous material to reach the conclusion that the plaintiff has no prima facie case in his favour. Civil Revision No. 6000 of 2011 4 .. Learned appellate court has taken into consideration various aspects of the controvesy to conclude that there is a prima facie case of partition of the suit property. The revenue record is relating to a land which is measuring 5 marlas and has three shops thereon. No authenticity could be attached to the entries of jamabadi relating to such a khasra number which is not under agricultural use. A person, who is in possession of the shops, is most relevant person to speak about the control of the person over the property in his possession. He is admittedly the tenant over the shops in question. It is not even the case of Moti Ram – petitioner that the shops or any one of them is in his possession. The property is in possession of the tenant and the tenant has averred that he is a tenant under defendants No. 2 and 3 and not under the plaintiff. This would go a long way in discrediting the case of Moti Ram. The sons of Rati Ram are exercising exclusive control over the property. The oral family settlements are not unknown among village people. Facts available on record clearly show that the sons of Rati Ram are in exclusive possession of the suit property and therefore, learned appellate court had not gone wrong in reaching the conclusion that there is no prima facie case in favour of plaintiff – Moti Ram. It is not a case of open/agriculural land in which Moti Ram may be taken to be in possession being a co-sharer, in the event of allegation of the defendants of oral family settlement is not Civil Revision No. 6000 of 2011 5 .. accepted. The property in question has shops thereon, which are in possession of the tenant under the sons of Rati Ram and, therefore, the decision in Bhartu's case (supra) does not help the petitioner. Similarly, the decision in Sandeep Kumar's case (supra) does not come to the help of the petitioner. The discretion exercised by learned appellate court is in no way perverse. For the aforesaid reasons, I find no ground to interfere with the impugned order. The revision petition is, consequently, dismissed. (VIJENDER SINGH MALIK) JUDGE September 29th , 2011 som