Angad v. Kesar & Ors.

Mr.Ashok Singla, Advocate with Mr. Ravish Bansal, Advocate for the petitioner. **** Vijender Singh Malik, J. Angad, plaintiff has brought this petition under the provisions of Article 227 of the Constitution of India challenging the order dated

04.10.2010 passed by learned Civil Judge (Junior Division), Sirsa, Annexure P-3 and the order dated 01.03.2011 passed by learned Additional District Judge, Sirsa, Annexure P-4, vide which the plaintiff was restrained from interfering in the possession of the counter claimants over the land measuring 62 kanals situated in khewat No.41, Khatauni No.66 and the parties have been permitted to alienate the property during the pendency of the suit with prior permission of the court after making an application for bringing on record the proposed vendee, so as to bind him/her specifically by the decree which might be passed in the suit. Civil Revision No. 5171 of 2011 --2-- The facts necessary to be noticed for the purposes of disposal of this petition are as under:- The plaintiffs have claimed themselves to be in possession of the suit land and have denied the defendants to have any concern with the possession thereof. The plaintiffs have claimed that they have not been ejected from the suit land nor they surrendered possession of the suit land in favour of anyone. The plaintiffs have challenged the sale deed executed by defendants no. 2 to 7 in favour of defendant no.1 as well as the entry thereof in the revenue record. It is claimed that the defendants have now started interfering in the possession of the plaintiffs over the suit land and they are bent upon to dispossess them therefrom. The defendants resisted the suit as well as the application and have filed a counter claim and moved an application under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil Procedure. They have claimed that it is the plaintiffs, who had threatened to alienate the suit property or create a charge thereon. They have prayed for dismissal of the application of the plaintiffs and acceptance of their application, restraining the plaintiffs from alienating or creating a charge over the suit property or interfering in their possession over the land measuring 62 kanals till final decision of the suit. Reply to the application of the defendants controverting the averments of the defendants and re-affirming there own pleas. Hearing learned counsel for the parties, learned Civil Judge (Junior Division), decided the two applications vide order dated 4.10.2010 Civil Revision No. 5171 of 2011 --3-- (Annexure P-3) with the directions that the plaintiffs shall not interfere in the possession of the counter claimants over the land measuring 62 kanals. The plaintiffs and defendant no.2 are moreover permitted to sell the suit property during the pendency of the suit with the aforesaid condition. Aggrieved by the aforesaid order, Angad, plaintiff no.1 filed an appeal. It was heard by Additional District Judge, Sirsa and decided vide judgment dated 01.03.2011 dismissing the same. For these reasons, plaintiff no.1 has brought this revision petition. I have heard Mr. Ashok Singla, Advocate with Mr. Ravish Bansal, Advocate for the revision-petitioner and have gone through the record carefully. Learned counsel for the revision-petitioners submitted that the compromise arrived at between the parties on the basis of which, the appeal was decided vide judgment dated 01.05.1980 had been questioned by way of a civil suit, which was dismissed, vide judgment dated 12.02.1990. According to him, the appeal preferred against that judgment by Ram Gopal and Jagdish was allowed on 16.12.1994. The judgments and decrees passed on the compromise were held illegal, null and void and not binding on the rights of Ram Gopal and Jagdish. He has further submitted that defendants no.2 to 7 therefore lost their right in the suit land and they could not sell the same in favour of Smt. Kesar, defendant no.1. He has submitted that since the decree passed in favour of defendant nos. 2 to 7 stands set aside, the position that would prevail would be that father of the plaintiff is in possession of the suit land. Civil Revision No. 5171 of 2011 --4-- He has drawn my attention to Annexure P-2, a true transcription of Jamabandi for the year 2006-07 where land of Khewat No.41, Khatauni no.66 is recorded in column cultivation to be under self cultivation and in the column of ownership, there is name of Puran son of Lakha, the father of the plaintiffs. According to him, this document would show that defendants no.2 to 7 were not in exclusive possession of the suit land, and therefore, the plaintiffs could not be restrained from interfering in their possession over the suit land. I find no merit in the aforesaid submissions made by learned counsel for the revision-petitioner. Rampat son of Kalu, who owned the suit land, died issueless. He had, however executed a Will in the year 1968, which was challenged by Wazira, the predecessor of defendant nos. 2 to 4, Modan and Shree Chand, defendants by way of civil suit no.207-C of 2.11.1976. In the said suit, the Will executed by Rampat was held illegal, null and void and not binding on the reversionary rights of Wazira, Modan and Shree Chand. They were held entitled to ½ share in the land measuring 170 kanals 2 marlas of Rampat. Angad and others sons of Puran Singh alongwith Puran Singh challenged the said judgment. During the pendency of the same, the parties compromised on account of which, Wazira, Modan and Shree Chand were given only 62 kanals of land. Puran Singh, Inder Singh and Smt. Veero still challenged the decree dated 01.05.1980 passed by the Appellate Court on the basis of compromise. In the said Regular Second Appeal, the case was remanded to Additional District Judge, Sirsa on 25.09.1984. The said Civil Revision No. 5171 of 2011 --5-- appeal was consequently dismissed by learned Additional District Judge, Sirsa, vide judgment and decree dated 06.08.1985. It was also held that succession of the property would be regulated by sections 8,9 and 10 of the Hindu Succession Act, 1956, while Inder Singh, Puran Singh and Smt. Veero were held entitled to ½ share i.e. land measuring 85 kanals 1 marla. In the second round of litigation, Ram Gopal and Jagdish filed a civil suit challenging the judgment and decree dated 01.05.1980 and 06.08.1985 claiming violation of the provisions of Order 32 Rule 7 of the Code of Civil Procedure. The said suit was dismissed vide judgment and decree dated

12.02.1990. However, the first appeal preferred before learned Additional District Judge was allowed on 16.12.1994. It is on the strength of the judgment dated 16.12.1994 that the compromise is alleged to be illegal and the defendants are said to have no right in the suit land. The judgment is admitted to be under challenge in a pending Regular Second Appeal. When a compromise was arrived at and Wazira, Modan and Sri Chand were given land measuring 62 kanals in lieu of their share of 85 kanals and 1 marla, it cannot be said that they were not given the possession thereof. Mere mention of the name of Puran in the Jamabandi for the year 2006-07 would not show that the defendants are not in actual cultivating possession of the suit land. Therefore, there is no reason to hold that the defendants are not in actual physical possession of the suit land. Learned trial court or learned First Appellate Court appear to have committed no patent illegality in passing the impugned orders. Therefore, I find no reason to interfere with the discretion exercised by learned lower courts on well Civil Revision No. 5171 of 2011 --6-- established principles of law. The revision petition is consequently dismissed.

12.09.2011 dinesh (VIJENDER SINGH MALIK) JUDGE