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2001 DIGILAW 440 (PNJ)

Surinder Kaur v. Amarjit Kaur

2001-04-19

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - The petitioner aggrieved by the impugned order has preferred this revision. 2. The petitioner of the case briefly stated are that Smt. Surinder Kaur and others filed a suit for permanent injunction restraining Amarjit Kaur and other defendants from obstructing or causing any interference in the smooth running of petrol pump; in the name and style of Premier Auto Engineers, Gill Road, Ludhiana and causing illegal and forcible dispossession of the plaintiffs by defendant No. 3 from the petrol pump. 3. An interm injunction by way of filing of application under Order 39 Rules 1 and 2 CPC was also prayed which was declined by the trial Court. In appeal, the order passed by the trial Court was affirmed. Hence this civil revision. 4. I have heard Shri Amit Rawal, learned Counsel for the petitioner and Shri T.P.S. Mann, learned Counsel for the respondents. 5. Shri Amit Rawal, learned Counsel for the petitioners has assailed the findings recorded by the courts below on the ground that the petitioner Nos. 1 and 2 and defendant No. 3 are in possession of the suit property-defendant No. 3 in the written statement had admitted the case of the petitioner. The respondents have not been able to establish their right or title over the property in question and if so, from which date. The documents placed on the record including the invoices of the Indian Oil Corporation Ltd. whereby the payment was being made the petitioners, show that the petitioners have a prima facie case. Thus, under these circumstances, if the respondent Nos. 1 and 2 are not restrained from obstructing, or from closing down the petrol pump, the petitioners will suffer irreparable loss, which cannot be compensated in terms of money. To support his argument. Shri Rawal has placed reliance on N. Umapathy v. B.V. Muniyappa, 1997(3) RCR (Civil) 306 wherein it is held that where the possession is admitted, then the party cannot be dispossessed from the land nor his intendment interdicted except in due course of law. 6. To support his argument. Shri Rawal has placed reliance on N. Umapathy v. B.V. Muniyappa, 1997(3) RCR (Civil) 306 wherein it is held that where the possession is admitted, then the party cannot be dispossessed from the land nor his intendment interdicted except in due course of law. 6. There is no dispute to the proposition of law that where a person is found to be in possession, he cannot be dispossessed forcibly or illegally, but a true owner has got a right to protect his lawful possession vis-a-vis a person who is found to be a trespasser or a person who gained unlawful possession, as against the owner as held in Premjit Ratansey Shah and others v. Union of India and others, 1995(1) Civil Court Cases 1 (SC). It has been observed that "even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against the true owner." 7. Whether the petitioners have been able to establish their prima facie possession over the property in dispute ? It has been observed by the courts below that the factum of family settlement has been pleaded whereby the petrol pump fell due to their share, but significantly the said family settlement has not been placed on record. On the contrary, a copy of the agreement dated 16.12.1986 indicates that Surinder Kaur wife of Inderjit Singh had relinquished share in the petrol pump running in the name of Premier Auto Engineers and transferred their share in the name of Nachhattar Singh. They had also placed on record a copy of the partnership deed dated 26.11.1986. Under these circumstances, where the petitioners have failed to establish their prima facie case so as to entitle them to the discretionary relief of interim against the petitioner, then is it appropriate to interfere under Section 115 of the Code of Civil Procedure. They had also placed on record a copy of the partnership deed dated 26.11.1986. Under these circumstances, where the petitioners have failed to establish their prima facie case so as to entitle them to the discretionary relief of interim against the petitioner, then is it appropriate to interfere under Section 115 of the Code of Civil Procedure. The answer is in the negative in view of the case law laid down in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase and Stores), Hindustan Aeronautics Ltd. Balanagar Hyderabad, AIR 1973 SC 76 and The Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and another, AIR 1976 SC 2621. In The Managing Director (MIG) Hindustan Aeronautics Ltd. (supra) under para 5, it was observed by the Honble Supreme Court as under :- "In our opinion, the High Court had no jurisdiction to interfere with the order of the First Appellate Court. It is not the conclusion of the High Court that the First Appellate Court had no jurisdiction to make the order that it made. The order of the First Appellate Court may be right or wrong, may be in accordance with law, or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the First Appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code; see the decision of this Court in Pandurang Dhoni v. Maruti Hari Jadhav, 1966(1) SCR 102 : AIR 1966 SC 153 and D.L.F. Housing and Construction Co. (P) Ltd. New Delhi v. Sarup Singh, 1971(2) SCR 368 : AIR 1971 SC 2324." Given serious thought to the submission made by the counsel for the petitioner and the facts discussed above with the support of case law, laid down by the Apex Court, I am of the considered view that it is not the case that the First Appellate Court had exercised its jurisdiction either illegally or with material irregularity. That being so, no case is made out for interference in the exercise of jurisdiction of the Court under Section 115 of the Code. Dismissed. Petition dismissed.