Gurmeet(minor) v. Smt.Kamlesh

CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Rishi Nijhawan, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.17811-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.4523 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 25.5.2011, passed by learned Additional District Judge, Kaithal, Annexure P1, vide which learned lower appellate Court has accepted the appeal filed by respondent- defendant and the applications for ad interim injunction order filed by present petitioner-plaintiff as well as by respondent-defendant were ordered to be dismissed. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned Courts below. Facts relevant for the decision of present revision petition are that a suit was filed by present petitioner-plaintiff against respondent- Civil Revision No.4523 of 2011(O&M) -2- defendant for a decree for declaration that sale deed of the land in dispute dated 24.11.2006 executed by father of present petitioner-plaintiff (minor) in favour of respondent-defendant, as a natural guardian, is illegal and void as the same was executed without complying with the conditions imposed by the Court granting permission to father of petitioner-plaintiff to sell the property in dispute belonging to him in a petition filed under Section 8 of the Hindu Minority & Guardianship Act, 1956 (hereinafter to be referred as the `Act').

Alongwith the suit, an application for ad interim injunction order restraining respondent-defendant from alienating the suit land further to any person or interfering in possession of the plaintiff, Annexure P3, was filed. Simultaneously, an application for injunction was also filed by respondent- defendant restraining the present petitioner from interfering in her possession over the property in dispute. Both the applications were decided by learned trial Court vide order Annexure P7, vide which application filed by petitioner-plaintiff was allowed to the extent that respondent-defendant was restrained from alienating the suit land. In appeal filed by respondent-defendant, learned first appellate Court dismissed the application for ad interim injunction order filed by present petitioner-plaintiff as well by observing that even petitioner-plaintiff has not been recorded as in possession of the specific portion of the entire property, a share of which has been sold to respondent-defendant by father of petitioner-plaintiff vide impugned sale deed and hence, when both are co- sharers in possession of the joint holding, none of the co-sharer is having a right to seek injunction unless the joint holding is partitioned.

It has been contended by learned counsel for the petitioner- plaintiff that the sale-deed executed by his father is not binding upon him Civil Revision No.4523 of 2011(O&M) -3- as the same was executed by his father without complying with the conditions imposed by learned Court while granting him permission to sell the property in dispute, in a petition filed under Section 8 of the Act. However, the said fact cannot be decided at this stage as the same is a matter of evidence. At this stage, only prima facie case, balance of convenience and the fact as to whether an irreparable loss would be caused to petitioner- plaintiff if ad interim injunction order is not granted to him, is to be seen. Prima facie respondent-defendant is co-owner in possession of the property in dispute by way of sale by father of present petitioner after obtaining permission of the Court under Section 8 of the Act. Hence, it has been rightly observed by learned first appellate Court that when both the parties are co-owners and in possession of the joint holding and the same has not been partitioned as per metes and bounds, none of the parties is having right to seek injunction against the co-owner.

In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned first appellate Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:- Civil Revision No.4523 of 2011(O&M) -4-

Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

Hence, the present revision petition is, hereby, dismissed being devoid of any merit.

27.7.2011 (Ram Chand Gupta) Judge