High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 8 8 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 122 Narayan & Oth Others CR-7416-2024 (O&M) Date of decision: 06.02.2025 ...Petitioner(s) ...Respondent(s) Achal Kumar J ar Jain & Others Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Amit Jain, Senior Advoc Mr. Parit Aggarwal, Advoca for the petitioners. dvocate with vocate Mr. Akshay Jindal, Advocate ocate ate Mr. Bhavya Vats, Advocate , Advocate Mr. Surya Partap Singh, Adv l, Advocate Mr. Yashvardhan Goyal, Ad Mr. Vrishank Suri, Advocate cate 6. for respondents No.5 & 6. NIDHI GUPTA, PTA, J. *** Present petition under Art r Article 227 of the Constitution of India has be as been filed by the plaintiffs seekin eking setting aside of impugned order dated 2 ed 28.05.2024 (Annexure P5) pas passed by learned Civil Judge, Junior Division ision, Gurugram whereby the applic pplication filed by the petitioner under Order 3 er 39 Rule 1 & 2 CPC has been dism dismissed; and the order dated 21.11.2024 (A 4 (Annexure P6) passed by learne arned Additional District Judge, Gurugram wh whereby, the appeal filed by the
Facts
the petitioners/plaintiffs against order dated 28 d 28.5.2024, has been dismissed. 2. Brief facts of the case are are that the plaintiffs filed the present suit f uit for declaration (Annexure P1) P1) with consequential relief of permanent inj t injunction, claiming to be co-owne wners in possession of suit land SUNENA 2025.02.15 10:14 I attest to the accuracy and integrity of this document (cid:1) described as as bearing Rect. No.15 Killa no. 15/ . 15/2/1(3-17) measuring 3 kanal 17 marla to to the extent of 30/693 share m re measuring 3 marla 3 sarsai situated in revenue estate of Kaderpur, in r pur, Tehsil Wazirabad, District Page 2 of 8 8 (cid:1) Gurugram. A Along with the said suit, the the petitioners had filed an application un n under Order 39 Rules 1 and 2 d 2 read with Section 151 CPC (Annexure P2 P2) which has been dismissed ed vide the impugned orders. Hence, presen esent revision petition. 3. Learned Senior Counsel for l for the petitioners submits that the khasra nu a number in dispute is bearing No. No.15/2/1, which in actual fact measures 3 ka 3 kanal 17 marlas. However, due to ue to error in the Jamabandi for the year 2000 000-01 and 2005-06 (Annexure P7) P7), khasra No.15/2/1 is shown to be measuri suring 3 kanal 7 marla. Unaware of e of this, the petitioners had sold total land mea measuring 10 kanal 17 marla to defe defendants No.1 and 2 vide Sale Deed dated 19 d 19.04.2005 (Annexure P8), in wh which also it was shown that in khasra No.15 o.15/2/1 land measuring 3 kana anal 7 marla had been sold. Thereafter, the r, the said land measuring 10 kanal nal 17 marla was sold to various people and w d was now in the hands of defen efendants No.5 and 6/caveators herein. 4. Subsequently, the defenda ndants No.5 and 6/respondents No.5 and 6 he 6 herein/caveators filed an applicati ication (Annexure P9) before the ACFG Gurugra ugram seeking partition of khewa ewat No.29 situated within the revenue estat state of Kadarpur, Tehsil Sohna, Di , District Gurgaon in which also the responden ndents No.5 and 6 along with resp respondents No.4, and 7 to 11 herein, were s re shown to be co-owners in posse ossession of the agricultural land SUNENA 2025.02.15 10:14 I attest to the accuracy and integrity of this document (cid:1) Page 3 of 8 8 (cid:1) recorded in k in khewat No.29. In the said a id application also, the khasra No.15/2/1 wa was shown to bear land measurin suring 3 kanal 7 marla. Learned Senior Counse unsel submits that however, during ring partition proceedings during demarcation a on and measurement of the land land, it was discovered that in actual fact the t the land in khasra No.15/2/1 was was measuring 3 kanal 17 marla, and not 3 kana kanal 7 marla as wrongly recorded ed in the Jamabandis (Annexure P-7); and as r as reported by the Assistant Collec ollector, 1st Grade, Tehsil Sohna, District Gurugr rugram vide Naksha G (Annexure P1 re P10). 5. Thereafter, the petitioners ers started making inquiries and they were ut e utterly shocked when it was r as revealed to them that the defendants in s in collusion with each other had had illegally got partitioned the suit land vide ide order of partition dated 10.08.2 .08.2011 which was got effected in the revenue enue record through mutation bear earing No.2874 (Annexure P13). After making i ing inquiries, the petitioners also dis o discovered that the area of suit land has been een wrongly mentioned to be 3 kan kanal 7 marla in the Jamabandi for the year ar 2000-01 and 2005-06 (Annexur exure P7) instead of 3 kanal 17 marla. Accord ordingly, the petitioners are co-own owners in possession of the suit property to th o the extent of 30/693 share measu easuring 3 marla 3 sarsai, as vide Sale Deed da dated 19.04.2005 out of 3 kana anal 17 marla borne in khasra No.15/2/1, th , the petitioners/their predecessor ssor-in-interest had sold only 3 kanal 7 marla arla. As such, the remaining share o re of the petitioners i.e. 3 marla 3 sarsai is stil still intact; and therefore, the pet petitioners ought to have been considered as d as owners in possession of the s he suit property. It is contended SUNENA 2025.02.15 10:14 I attest to the accuracy and integrity of this document (cid:1) Page 4 of 8 8 (cid:1) that it is admi dmitted fact on record that the pe e petitioners had never received any sale consid onsideration in respect of the area m ea measuring 3 marla 3 sarsai. 6. Ld. Senior Counsel subm ubmits that in the month of November-De December 2022the respondents N nts No.5 and 6/defendants No.5 and 6 starte arted collecting building materia terial over suit land to raise construction on over the same in excess of of their share. As such, the petitioners file s filed the present suit on 23.8.20 .8.2023 (Annexure P-1), seeking declaration an n and permanent injunction as abo above. Along with the suit the petitioners fil s filed the application under Ord Order 39 Rules 1 and 2 CPC (Annexure P2) P2) as the respondents have now now started raising construction over the suit suit land without there being any any partition of the same. It is accordingly pr ly prayed that in case the defendan ndants/respondents No.5 and 6 herein are pe permitted to raise construction o n over the suit land during the pendency of t of the suit, grave injustice will be ca be caused to the petitioners. It is contended tha that the co-owners cannot be per permitted to raise construction on the entire ntire suit property and should be be restricted from alienating, transferring a g and changing the nature of s of suit property of which the petitioners ar s are admittedly co-owners. It is t is argued that the act of the respondents a ts amounts to ouster which is pre s prejudicial and adverse to the interest of th f the petitioners. Thus, injunctive tive relief ought to have been granted to the the petitioners. 7. Learned Senior Counsel s sel submits that the petitioner was not made ade a party in the partition proce roceedings. It is contended that once it was as discovered by the defendant dants that the area of khasra SUNENA 2025.02.15 10:14 I attest to the accuracy and integrity of this document (cid:1) No.15/2/1 is m is more than that depicted in the re he record, the petitioners should Page 5 of 8 8 (cid:1) have been gi n given notice in the partition pr n proceedings. It is accordingly prayed that th the present petition be allowed a ed and the impugned orders be set aside. 8. Learned el counsel appearing for respondents/d ts/defendants No.5 and 6/caveato eators vehemently opposes the prayer made o de on behalf of the petitioners and and submits that the partition is of 10.08.2011 011; whereas the present suit has b as been filed in the year 2023. It is further subm submitted that at best the petition itioner is co-sharer to the extent of 3 marlas. I as. It is established position in law law that no injunction can be granted again gainst co-sharer. Moreover, respon pondents No.5 and 6 have sold flats to third p ird parties. It is further argued that that mere raising of construction does not amo amount to ouster of the petition itioner from the suit land. It is accordingly pr ly prayed that the present petition b on be dismissed. 9. 10. No other argument is made ade on behalf of the parties. I have heard learned co counsel for the parties and perused the he voluminous case file in great deta detail with the able assistance of the ld counsel nsel for the parties. 11. I find no merit in the sub submissions made on behalf of the petitione ioners. The case of the parties ties has already been noticed hereinabove i ve in minute detail to the effect ffect that the petitioners were owners in pos possession of the suit land, which hich included land measuring 3 kanal 17 marl arla in khasra No.15/2/1. Howeve ever, in the revenue record, the said land wa was incorrectly depicted to be be 3 kanal 7 marla in khasra SUNENA 2025.02.15 10:14 I attest to the accuracy and integrity of this document (cid:1) No.15/2/1 in the jamabandis for the ye in years 2000-01 and 2005-06 Page 6 of 8 8 (cid:1) (Annexure P7) P7). Based on the same, the petiti etitioners had further sold their respective sha share to respondents/defendants ants No.1 and 2 vide Sale Deed dated 19.04.20 4.2005 to the extent of 3 kanal 7 m 7 marlas in 15/2/1. It is the case of the petition titioners that it is only in Novembe mber-December 2022 when the respondents N ts No.5 and 6/defendants No.5 and and 6/caveators started putting building mate aterials on the suit land that the the petitioners discovered that they intend to d to raise construction over the sa e same. Upon making inquiries, the petitioner ners claimed to have discovered th d that the suit land was illegally partitioned on d on 10.08.2011; and that khasra no ra no.15/2/1 actually measures 3 kanal 17 marla arla. 12. An injunction is contempla mplated to be granted in favour of the plaintiff intiff in three eventualities the same ame being: a) the plaintiff is able to make out a
Legal Reasoning
ut a prima facie case; b) the balanc lance of convenience is in favour of the plaintiff intiff; and c) irreparable injury shall hall be caused to the plaintiff in case injunction ction is not granted. 13. In the present case, the p e petitioners have been unable to make out a ut a case in any of the above cate categories. The undisputed facts are that the p he petitioners by their own claim im are at best co-sharers to the extent of 3 Ma 3 Marla 3 sarsai. It is established pr d principle in law that injunction is not granted ted against co-sharer unless exclusi clusive possession is proven. The petitioners ha s have been unable to establish lish that they are in exclusive possession. A n. As such, the petitioners have b ve been unable to make out a prima facie ca e case in their favour. SUNENA 2025.02.15 10:14 I attest to the accuracy and integrity of this document (cid:1) 14. Admittedly, suit property w rty was sold by the petitioners as Page 7 of 8 8 (cid:1) far back as in s in 2005, whereafter it has chang hanged hands many times over. Moreover, par , partition in the present case took ook place as far back as in 2011; whereas prese resent suit has been filed by the the petitioners only in 2023. As such, balance nce of convenience also does not lie t lie in favour of the petitioners. 15. Lastly, but not the least, ast, from the above facts, the petitioners ha s have been unable to make out th t that irreparable injury shall be caused to the them in case injunction is not gra granted in their favour. On the contrary, the f the facts in the present case indicat icate that in case the impugned orders are set set aside, irreparable injury shall shall be caused to the opposite party. 16. I find merit in the submiss missions made on behalf of the respondents N ts No.5 and 6 that mere raising sing of construction would not amount to ou ouster. In this regard, reference m ce may be made to judgment of this Court in in “Madan Lal & Others Vs. M/ . M/s Emaar MGF Land Ltd. & Others” Law F aw Finder Doc ID # 2000465, where erein it is held that: “...Reliance is sought to be placed aced on the judgment titled as ‘T. Ramalingeswara Rao (Dead) Thr ) Through LRs and another v. N. Madhava Rao and others’ 2019 ( 019 (2) RCR (Civil) 770 which has further drawn analogy from the F fu the Full Bench view of this Court laid down in ‘Bhartu v. Ram Sar Sarup’ 1981 PLJ 204 and in a similar view in a judgment titled itled as ‘Om Parkash v. Rohtash and another’ 2020 (1) RCR (Civil (Civil) 124, a Single Bench of this Court has held that a mere rais raising of construction on joint property by one of the co-sharers arers cannot be termed to be an act of ouster of other co-sharers... ers...”. SUNENA 2025.02.15 10:14 I attest to the accuracy and integrity of this document (cid:1) 17. It is not denied that the re e respondents No.5 and 6 have Page 8 of 8 8 (cid:1) already raised ised construction of flats at the sp e spot; which have been further sold to third p ird parties. Thus, keeping in view th w the entirety of the above facts and circumsta stances of the case, I find no grou ground is made out to grant the injunction as as prayed for by the petitioners ners/plaintiffs. Present petition accordingly sta ly stands dismissed. 18. Pending application(s) if an
Decision
if any also stand(s) disposed of. 06.02.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.02.15 10:14 I attest to the accuracy and integrity of this document (cid:1)