Amra & Ors. v. Union of India & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. R. P. Singh Ahluwalia, Advocate for the petitioners. Ms. Kamalpreet, Advocate for respondent no.6. * * * L. N. MITTAL, J. (Oral) : The plaintiffs having remained unsuccessful in both the courts below have approached this Court by way of instant civil revision petition under Article 227 of the Constitution of India assailing order dated

15.11.2008 of learned Additional Civil Judge (Senior Division), Panchkula and judgment dated 22.01.2009 of learned Additional District Judge, Panchkula affirming that of the trial court. The plaintiffs' case is that one Budh Ram was occupancy tenant over the suit land. On his death, mutation was sanctioned in favour of Sadhu Ram, Uday Ram, Bhura and Mansa. Uday Ram was son of father's brother of Budh Ram and the other three are grandsons of brothers of father of Budh Ram. The plaintiffs and defendants no. 7 and 8 are grandchildren C. R. No. 1706 of 2009 2 of Uday Ram. It is contended that after consolidation of holdings, only Matu Ram – father of defendant no.7 was recorded to be occupancy tenant in the revenue record although names of plaintiffs and defendant no.8 should also have been recorded. The plaintiffs have filed suit seeking declaration that they along with defendants no.7 and 8 are joint owners in possession of the suit land measuring 5 kanals 11 marlas and that allotment thereof by defendants no.1 to 3 (Rehabilitation Authorities) in favour of defendant no.6 vide Rapat dated 14.09.1995 is null and void.

The plaintiffs also claimed permanent injunction restraining defendants no.1 to 6 from alienating the suit land in any manner and restraining defendants no. 1 to 7 from interfering in the possession of plaintiffs and proforma respondent no.8 over the suit land. Temporary injunction to the same effect was also sought by moving application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (in short – the CPC). The said application has been dismissed by the trial court. The plaintiffs also remained unsuccessful in appeal. Defendants no.1 to 3 denied the occupancy tenancy of Budh Ram over the suit land. The suit property was alleged to be evacuee property and is said to have been allotted to father of defendant no.6 in lieu of land left in Pakistan. Defendant no.6 has also taken possession of the suit land from defendant no.7. Since 1960-61 till December 2008, when the suit was filed, continuously for the period of more than 48 years, the plaintiffs were never recorded to be in possession of the suit land.

There is also no other material on record to even remotely suggest that the plaintiffs ever came in possession of the suit land. Consequently, their claim to temporary injunction against interference in their possession, cannot be accepted. Learned counsel for the petitioners, however, vehemently contended that the petitioners, being some of the heirs of original occupancy C. R. No. 1706 of 2009 3 tenant Budh Ram, have acquired ownership in the suit land to the extent of their share on the basis of occupancy rights. The contention has been vehemently opposed by learned counsel for respondent no.6 contending that the petitioners never remained in possession of the suit land and therefore, could not acquire occupancy rights or ownership rights. It is also contended that defendant no.6 has already agreed to sell the suit land to Davinder Singh and Raghbir Singh although sale deed is yet to be executed.

I have carefully considered the matter. There is no revenue entry in favour of the petitioners for the last almost half century and in fact, there was never any revenue entry in their favour although mutation of inheritance of Budh Ram was sanctioned in the year 1937-38 in favour of petitioners' predecessor Uday Ram and three others. In these circumstances, respondent no.6, who has been allotted land by Rehabilitation Authorities and who has also taken its possession from Baldev (respondent no.7) cannot be injuncted from alienating the same because the petitioners have failed to make out any prima facie case and the balance of convenience is also not in their favour. The petitioners have come to the Court for the first time in December 2008 after remaining silent for half century. If temporary injunction is granted, respondent no.6 would suffer irreparable loss. However, interest of petitioners can be safeguarded by directing respondent no.6 to specifically recite in the deed of alienation that the instant suit is pending so that the alienee becomes aware of the pendency of the suit and would not be able to take the plea of being bona fide purchaser, without notice of the alleged rights of the petitioners. It is ordered accordingly. In view of the aforesaid, the instant revision petition is dismissed with direction to respondent no.6 as aforesaid. March 26, 2009 monika ( L. N. MITTAL ) JUDGE