C.R. No. 4428 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 4428 of 2011 Date of Decision: 28.9.2011 Raghuvir Singh and another ....Petitioners. Versus Shamsher Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. G.S. Sidhu, Advocate for the petitioners. Mr. A.K. Khunger, Advocate for the respondents. AJAY KUMAR MITTAL, J. 1. The plaintiff-petitioners have approached this Court under Article 227 of the Constitution of India impugning the order dated 21.4.2011 (Annexure P-2) passed by the appellate court upholding the order dated 10.4.2009 (Annexure P-1) passed by the trial court whereby an application filed by the plaintiff-petitioners to seek interim injunction to restrain the defendant-respondents from alienating the suit property during the pendency of the suit, was declined. 2. Facts for the disposal of the present revision petition are that Jangir Singh father of defendant-respondents No.1 to 4 was owner of the suit land along with some other land and gave the suit property to one of his sons respondent-defendant No.1 through decree dated C.R. No. 4428 of 2011 -2- 14.3.1992 passed in civil suit No. 319-1 dated 11.3.1992 titled as “Shamsher Singh v. Jangir Singh”. On the basis of the decree, mutation was also sanctioned in favour of defendant-respondent No.1. Defendant-respondent No.2 filed a suit for setting aside the decree dated 14.3.1992 passed in favour of defendant No.1. The decree was set aside vide judgment and decree dated 1.2.2002. After setting aside of the decree, defendant-respondent No.1 sold the land to the plaintiff- petitioners vide registered sale deeds dated 27.8.2003 and dated 5.12.2003. On the basis of the said sale-deeds, the plaintiff-petitioners got sanctioned mutation in their favour vide order dated 16.1.2004. The mutation was challenged by defendant-respondent No.2 by filing an appeal which was dismissed vide order dated 1.7.2005. The plaintiff- petitioners remained cultivating in possession as owners of the land and were in possession of the suit land till date. Vide order dated 20.3.2006, the mutation was sanctioned in favour of the respondents. Thereafter, the plaintiff-petitioners filed a civil suit for setting aside the judgment and decree dated 1.2.2002. Along with the suit, the plaintiff- petitioners also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for restraining the defendants from causing any interference into the peaceful possession over the land and not to alienate the suit property in any manner during the pendency of the suit. The trial court vide order dated 10.4.2009 dismissed the said application. The plaintiff-petitioners filed an appeal against the order dated 10.4.2009 before the appellate court. The said appeal was dismissed by the appellate court vide order dated 21.4.2011. Hence, the present revision petition. C.R. No. 4428 of 2011 -3- 3. I have heard learned counsel for the parties and have perused the record with their assistance. 4. Jangir Singh father of defendants No.1 to 4 suffered a collusive decree in favour of defendant No.1 Shamsher Singh on 14.3.1992 and on the basis thereof, mutation was sanctioned. However, the said decree was challenged by defendant No.2 (brother of defendant No.1) in the year 2000 which was set aside in 2002. The plaintiff-petitioners purchased the suit property from defendant No.1 in the year 2003. The present suit has been filed seeking declaration with consequential relief of permanent injunction that the plaintiff-petitioners are the owners in possession of the property in dispute. The learned appellate court while affirming the findings of the trial court had recorded as under:- “11. From the record on the file it transpires that Jangir Singh father of the respondents No.1 to 4 was originally owner in possession of the suit property. Admittedly he transferred the suit property by way of collusive decree dated 14.3.1992 in favour of respondent Shamsher Singh but Baljit Singh defendant/respondent No.2 get the said judgment set aside by filing civil suit No. 83-1 dated 28.2.2000. His suit was decreed by the court of Sh. G.S. Dhillon, Civil Judge, Abohar vide judgment and decree dated 1.2.2002. Shamsher Singh defendant/respondent No.1 did not file any appeal against the said judgment and decree dated 1.2.2002. A perusal of C.R. No. 4428 of 2011 -4- the judgment and decree dated 1.2.2002 would show that it was not collusive judgment and decree as defendant Shamsher Singh never admitted the case of Baljit Singh plaintiff, rather hotly contested the same. Therefore, it cannot be said that it was family affair and that in order to defraud the plaintiffs the judgment and decree has been got passed as alleged by the plaintiffs. Since after passing of the judgment and decree dated 1.2.2002, Shamsher Singh was left with no interest in the suit property, therefore, he had no authority to transfer the suit property by executing the sale deeds dated 27.8.2003 and 5.12.2003 in favour of the plaintiffs/ appellants. Admittedly mutation of the suit property has already been sanctioned in favour of the respondents and it is the respondents, who were owners of the suit property at the time of execution of the impugned sale deeds. Therefore, the learned trial court has rightly dismissed the injunction application. 12. In view of my above discussion and taking into consideration the facts of the present case, I am of the view that the impugned order passed by the learned trial court does not suffer from any infirmity or irregularity. As such the same cannot be said to be perverse in any way and hence there is nothing on C.R. No. 4428 of 2011 -5- the file as to why this court should interfere in the impugned order. Accordingly this appeal stands dismissed. However, my above said observations are for the purpose of disposal of the instant appeal and shall have no bearing on the merit of the case of either party. Lower court file be sent back. The parties through their counsel are directed to appeal in the trial court on 28.4.2011.” 5. For deciding an application for interim injunction, the Court has to examine the three conditions, namely, (i) the party seeking injunction has a prima facie case; (ii) the balance of convenience is also in his favour; and (iii) the party shall suffer an irreparable loss and injury in case the injunction is not granted. In the present case, the collusive decree having been set aside in the year 2002, prima facie, the plaintiff- petitioners were unable to substantiate their claim of ownership on the basis of the sale deeds executed in the year 2003. Further, the appellate court applied the doctrine of lis pendens enshrined in Section 52 of the Transfer of Property Act to deny the interim injunction. There is no error in the approach of the appellate court as any sale or purchase made during the pendency of the suit will be hit by principles of lis pendens and in case the suit of the plaintiffs succeeds, they shall be entitled to get the property. 6. No illegality or infirmity could be pointed out by the learned counsel for the plaintiff-petitioners in the order passed by the appellate court which may warrant interference by this Court under Article 227 of the Constitution of India. C.R. No. 4428 of 2011 -6- 7. Accordingly, there is no merit in this revision petition and the same is hereby dismissed. September 28, 2011 (AJAY KUMAR MITTAL) gbs JUDGE