Rajpal Singh v. Harkewal Kaur

Present: Mr.Sandeep Punchhi, Advocate for the petitioner. Mr.P.S.Sekhon, Advocate for the respondent. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India against order dated 1.9.2010, passed by learned Additional District Judge, Ferozepur, allowing appeal filed by respondent- plaintiff against order dated 4.1.2010, passed by learned Additional Civil Judge, Senior Division, Zira, on an application filed under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (for short `the Code') for ad interim injunction order, by respondent-plaintiff. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned orders passed by learned Courts below. Facts relevant for the decision of present revision petition are that respondent-plaintiff claiming to be owner in possession of the land in dispute filed suit for permanent injunction against present petitioner- defendant on the ground that he is having no concern with the land in Civil Revision No.6530 of 2010(O&M) -2- dispute and that he intends to oust her from the land in dispute by force and also threatening her to get the entries regarding possession in the revenue record changed in his name. On the similar facts, an application under Order 39 Rules 1 and 2 read with Section 151 of the Code was also filed by respondent-plaintiff for grant of ad interim injunction order. Petitioner-defendant contested the claim of respondent-plaintiff on the plea that Avtar Singh, his deceased father, was a big land owner and in order to save his land from surplus pool, he executed a benami sale deed regarding land measuring 76 kanals 16 marlas in favour of respondent- plaintiff. Hence, it is pleaded that sale deed was without consideration and the same was a benami transaction and no possession was delivered to respondent-plaintiff. Further plea has been taken that during his life-time Avtar Singh used to cultivate the land and after his death, he is cultivating the same. Learned trial Court decided the said application directing both the parties to maintain status quo qua possession of the land in dispute during pendency of the suit. Dissatisfied with the order passed by learned trial Court, respondent-plaintiff filed appeal before learned Additional District Judge, Ferozepur, which was allowed, vide impugned order dated 1.9.2010, and petitioner-defendant was restrained from interfering in peaceful possession of respondent-plaintiff and from dispossessing her by force from the suit land, except in due course of law. It has been contended by learned counsel for the petitioner- defendant that respondent-plaintiff resides with her husband in another village and she never resided in village, in which property in dispute is Civil Revision No.6530 of 2010(O&M) -3- situated. It is further contended that there was no question of her cultivating the land at any time. It is further contended that proceedings for getting revenue entries corrected has also been initiated by the petitioner-defendant and, however, the order passed by Collector has been reversed by the Commissioner, who remanded the case for fresh decision. Further contended that however, revision has been filed by petitioner-defendant against the said order before the Financial Commissioner. It is further contended that petitioner-defendant is not disputing ownership of respondent-plaintiff and, however, as petitioner-defendant has been continuing in possession, no injunction can be granted in favour of respondent-plaintiff and rather in the garb of injunction order, respondent- plaintiff intends to take forcible possession of the land in dispute from petitioner-defendant. He has also placed reliance upon Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass, 2004(9) JT 216. On the other hand, it has been contended by learned counsel for the respondent-plaintiff that prima facie case is in favour of respondent- plaintiff, as she has been continuing in possession of the land in dispute as owner by virtue of sale deed executed in her favour and her ownership and possession has also been recorded in the revenue record, i.e., jamabandis and khasra girdawaris, since long. Further contended that petitioner- defendant intends to dispossess the respondent-plaintiff from the land in dispute forcibly, whereas he is having no right in the land in dispute and an FIR was also registered against him in this regard at the instance of respondent-plaintiff. It is further contended that he has also tried to get the entries regarding ownership and possession changed in his name by filing proceedings before Revenue Court and, however, he has not been able to Civil Revision No.6530 of 2010(O&M) -4- succeed. Law is well settled that at this stage, only prima facie case, balance of convenience and the fact as to whether an irreparable loss would be caused to the plaintiff, if ad interim injunction order is not granted in his favour, is to be seen. It has also been so observed by Hon'ble Apex Court in Maharwal Khewaji Trust (Regd.) Faridkot's case (supra), on which reliance has been placed on behalf of the petitioner-defendant, that until and unless a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of property being changed, which also includes alienation or transfer of the property, which may lead to loss or damage being caused to the party, who may ultimately succeed and may further lead to multiplicity of proceedings. In the present case respondent-plaintiff has been able to show prima facie that she is owner in possession of the land in dispute. She has become owner by way of sale deed. She has also been recorded as owner in possession in jamabandis and khasra girdawaris since long. Entries in jamabandis are having presumption of truth. On the other hand no document has been produced by petitioner-defendant in order to show his possession over the land in dispute. Petitioner-defendant has not denied ownership of respondent-plaintiff. Plea of benami transaction is also no more available to petitioner -defendant. So far as the pendency of proceedings before Revenue Court regarding change in entry in khasra girdawaris is concerned, the said proceedings are also still pending. Hence, as on today, respondent-plaintiff has been prima facie shown to be owner in possession of the land in dispute. It has also been prima facie shown that Civil Revision No.6530 of 2010(O&M) -5- petitioner-defendant is trying to dispossess the respondent-plaintiff by force from the land in dispute and she has also registered an FIR against him. Hence, in view of these facts, it cannot be said that any illegality or material irregularity has been committed by learned first appellate Court in allowing the appeal filed by respondent-plaintiff 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 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit.

18.5.2011 (Ram Chand Gupta) Judge Note: Whether to be referred to Reporter? Yes/No.