Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 649 (PNJ)

Des Raj v. Surinder

2000-07-03

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a civil revision and has been directed against the order dated 2.8.1999 passed by Additional District Judge, Amritsar, who reversed the order dated 28.10.1997 passed by Additional Civil Judge (Senior Division), Ajnala, and dismissed the application of the petitioner (plaintiff in the trial Court) under Order 39 Rules 1 and 2 C.P.C. 2. Des Raj petitioner-plaintiff filed a suit for permanent injunction restraining the defendant Smt. Surinder from selling, mortgaging, transferring or alienating in any manner the suit land measuring 7 marlas fully described in the head-note of the plaint and also made a prayer that during the pendency of the suit, the defendant be restrained from alienating any portion of the suit property. The case set up by the plaintiff was that this property belonged to Ganda Mal, who had four sons namely Des Raj, Babu Ram, Piara Ram and Amolak Ram. Defendant Smt. Surinder is the daughter-in-law of Piara Ram. Admittedly, the parties are co-sharers. The learned trial Court vide order dated 28.10.1997 and for the reasons given in plot No. 5 of the order allowed the application of the plaintiff by holding that plaintiff was a co-sharer in the suit land and, therefore, he had got every right, title and interest in the suit land. The defendant is also a co-sharer and, therefore, she could not transfer, by any means, specific portion and more than her share out of the suit land. Resultantly, the application under Order 39 Rules 1 and 2 C.P.C. was granted. 3. Defendant Smt. Surinder was aggrieved by the order of the learned trial Court and she filed an appeal under Order 43 Rule 1 C.P.C. in the Court of Additional District Judge, Amritsar, who vide impugned order date 2.8.1999 allowed the appeal and dismissed the application under Order 39 Rules 1 and 2 C.P.C. for the reasons given in para No. 4 of the impugned order and in this manner the present revision by the plaintiff-petitioner. 4. I have heard the learned counsel for the parties and with their assistance have gone through the record of the case. Before I deal with the submissions raised by the learned counsel for the parties, it will be appropriate for me to incorporate para No. 4 of the impugned order dated 2.8.1999 in order to appreciate the contentions of the parties, which reads as under :- "4. Before I deal with the submissions raised by the learned counsel for the parties, it will be appropriate for me to incorporate para No. 4 of the impugned order dated 2.8.1999 in order to appreciate the contentions of the parties, which reads as under :- "4. I have heard the learned counsel for the parties and have also gone through the file minutely. The partition deed has not been implemented in the revenue record, so it cannot be taken into consideration. But the fact remains that Des Raj plaintiff is not coming with clean hands to have the discretionary relief. The perusal of the copy of sale deed dated 29.4.1992 shows that he has himself sold some property to Parveen Kumari. Perusal of the copy of Jamabandi for the year 1993-94 shows that Piara Ram, Babu Ram, Des Raj and Amolak Ram are joint owners in joint possession of land bearing Khasra Nos. 191(0-7), 196/2/2(4-0), 196/1(0-2), 196/2/1(0-2) total 4 Kanals 11 Marlas in which Piara Ram has approximate share of 23 Marlas and Piara Ram has sold 7 Marlas of land to the defendant. It will be deemed as sale of share by Piara Ram in the joint Khata. So, in view of these circumstances I am of the view that plaintiff has no prima facie case nor the balance of convenience in his favour and he will not suffer irreparable loss if temporary injunction is not granted to him. Accordingly, appeal is accepted and the order of lower court vide which the stay has been confirmed in favour of the plaintiff is set aside and stay is vacated. This order shall however have no effect on the merits of the main suit. Parties are directed to appear before the trial Court on 16.8.1999. Record of the trial Court be returned, whereas the appeal file be consigned to the record room." 5. Mr. Mahajan, the learned counsel appearing on behalf of the petitioner though tried to convince me that the defendant-respondent is not in possession of any specific portion of the suit land and in these circumstances she could not alienate or transfer any specific portion of the joint property in the capacity of a co-sharer. In support of his contention the learned counsel relied upon Bhartu v. Ram Sarup, 1981 P.L.J. 204. In support of his contention the learned counsel relied upon Bhartu v. Ram Sarup, 1981 P.L.J. 204. The argument of the learned counsel for the petitioner cannot be accepted in view of the clear averments made by Des Raj plaintiff himself, who sold a part of the suit property vide sale deed dated 29.4.1992. Even the jamabandi for the year 1993-94, which has been relied upon by the first Appellate Court, shows that Piara Ram, Babu Ram, Des Raj and Amolak Ram were the joint owners in joint possession of the land in which Piara Ram had 23 marlas share, out of which he had sold 7 marlas of land to Parveen Kumari and in these circumstances it will be deemed as sale of the share of Piara Ram from the joint khata. When the plaintiff himself sold some specific property, in these circumstances, it is not open for him to say that defendant cannot sell any specific portion. In order to succeed an application under Order 39 Rules 1 and 2 C.P.C. the plaintiff was required to prove a prima facie case, balance of convenience and irreparable injury, which is missing in this case. In these circumstances, I do not see any illegality or impropriety in the impugned order of the first Appellate Court. 6. Resultantly, I find no merit in this revision, which is hereby dismissed with no order as to costs. Nothing stated above shall amount an expression of my opinion on the merits of the case. Revision dismissed.