Dalip Kaur v. Smt Dalbir Kaur & Ors.

CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. J.S. Santwal, Advocate for the petitioner. Mr. B.S. Mittal, Advocate for respondent Nos.1 to 3. Mr. Surinder, Advocate for Mr. S.P.S. Randhawa, Advocate for respondent No.4. Jaswant Singh, J Petitioner-Dalip Kaur/legal representative of plaintiff No.1- Maharaj Bir Singh has filed the present petition under Article Article 227 of the Constitution praying for setting aside the impugned order dated

26.10.2006 passed by learned Civil Judge (Jr. Division), Sirsa whereby the application under Order 39 Rules 1 & 2 CPC filed by Maharaj Bir Singh- husband of the petitioner as well as plaintiff No.2-proforma respondent No.5 (herein) has been dismissed; as well as judgment dated 16.10.2009 passed by the learned Additional District Judge, Sirsa dismissing the appeal filed against the order dated 26.10.2006. Brief facts of the case are that the plaintiffs filed a suit for declaration to the effect that they are owner in possession of the suit property described in the head note of the plaint on the basis of adverse C.R.No.6776 of 2009 #2# possession and the defendants-respondents have no concern whatsoever regarding the same; with further consequential relief of permanent injunction restraining the defendants-respondents from interfering into the peaceful possession of the plaintiffs over the suit land.

Along with the suit, an application under Order 39 Rules 1 & 2 CPC was filed but the same was opposed by the defendants-respondent Nos.1 to 3. After hearing both the parties, said application was dismissed by the learned trial Court and appeal filed against the same has also been dismissed by the learned Additional District Judge vide impugned judgment and order dated 16.10.2009, hence the present petition. It is argued on behalf of the petitioner that both the courts below have illegally erred while declining the relief of temporary injunction to the petitioner/plaintiffs resulting into miscarriage of justice, which is not legally sustainable and liable to be set aside. It is further argued that the possession of the plaintiff is continuously uninterrupted and hostile against the defendants and they have become owner in possession of the same by way of adverse possession and they have raised constructions for storing the wheat bag and other grains since 1986 and continuously letting out to District Food and Supply Controller, Sirsa.

It is also argued that the sale deed executed by defendant No.3 in favour of defendant No.2 and further by defendant No.2 in favour of defendant No.1 as well as the mutation are illegal, null and void and not effecting the right of the plaintiffs. On the other hand, learned counsel for the respondents have seriously opposed the petition and argued that both the courts below have judicialy exercised their discretion and the impugned orders do not require any interference by this Court while exercising jurisdiction under Article C.R.No.6776 of 2009 #3# 227 of the Constitution and prayed for dismissal of the petition. After careful consideration of the paper book as well as hearing the parties, this Court does not find any illegality or perversity in the impugned order/judgment passed by both the learned courts below and the same deserves dismissal due to the following reasons. Close examination of both the impugned orders/judgments reveal that both the learned lower courts below had the occasion to peruse the relevant record of the case and they have come to the conclusion that as per the jamabandi for the years 2001-02 along with khasra girdawari from 2002 to 2005, Hari Singh, Maha Vidalya-defendant/respondent No.3 is recorded as owner in possession of the suit land. Further as per mutation No.5167 dated 4.11.2004, defendant-respondent No.3 has transferred the suit land in favour of defendant No.2 by way of registered sale deed dated

22.7.2004. Thereafter as per mutation No.5177 dated 14.12.2004, defendant No.2 has transferred the suit land in favour of defendant No.1 vide relinquish deed dated 24.11.2004. Further the sale deed and mutation reflects that defendant No.3 had handed over the possession of the suit land to defendant No.2 and thereafter actual physical possession was given to defendant No.1. Both the courts have rightly held that presumption of truth is attached with the revenue record until and unless, it is proved otherwise. There is nothing substantial on record to controvert the presumption of truth attached with the revenue produced before both the courts below. So far as Civil Suit No.221-CA of 1995 titled as Maharaj Bir Singh vs. Sukhdev Singh is concerned, that will not give any advantage to the petitioner- plaintiff as the defendants-respondents were not the parties in that civil suit. C.R.No.6776 of 2009 #4# As per revenue record, defendant No.1 is shown to be in actual possession of the property in dispute. The only basis for the plaiintiffs to claim themselves as owner in possession of the suit land is their adverse possession, which is yet to be proved by leading cogent evidence admissible in law. So far the validity of alleged sale deed and mutation are concerned that is, prima facie, admissible in law until and unless the same is set aside. Therefore, none of the three ingredients for grant of temporary injunction are made out. Keeping in view the facts and circumstances discussed hereinabove, no illegality or perversity can be found with the concurrent findings recorded by both the learned courts below warranting interference under Article 227 of the Constitution. Dismissed. May 25, 2011 ( JASWANT SINGH ) JUDGE