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2006 DIGILAW 3522 (PNJ)

Devinder Singh v. Darshan Singh

2006-09-11

VINOD K.SHARMA

body2006
JUDGMENT Vinod K. Sharma, J. - By way of present revision petition the challenge is to the orders passed by the learned Courts below under Order 39 Rules 1 and 2 of the Code of Civil Procedure vide which the defendant-petitioner was restrained from alienating the suit property beyond his share and was also restrained from changing any specific portion of the suit property in any manner during the pendency of the suit. He was further restrained from parting with possession of suit property beyond his share. He was also restrained from changing the nature/character of the suit property during the pendency of the suit. However, he was permitted to put his share to commercial or agricultural use as a prudent man can do, but he can do so provided it does not affect the nature/character of the suit property. 2. The case set up by the plaintiff-respondent was that he along with defendant-petitioner and Hardip Singh were owners of the suit property in equal shares. The property detailed in headnotes (a) to (c) was agricultural land while property detailed in head note (d) was residential house. 3. It was the case of the plaintiff-respondent that on coming to India on 2nd of July 2004 he learnt that defendant had got an ex parte order dated 14.6.2004 from the Court of Assistant Collector Ist Grade, Phagwara, for partitioning of the land mentioned in the headnote (a) in the suit land and had started raising construction of building and boundary wall on the part of the land after cutting sugarcane sown by the plaintiff through contractor Bahadur Singh and he was changing the nature of the agricultural land to abadi area jeopardizing the interest of the petitioner in the suit land alleged to be joint. It was claimed that the ex parte order dated 14.6.2004 had not become final as the plaintiff-respondent had already moved the Court of Assistant Collector Ist Grade, Phagwara, to get the said order set aside. It was further pleaded that the defendant-petitioner was threatening to raise construction in the other joint land and to damage the land and demolish the kothi in question and was threatening to sell/exchange/mortgage the agricultural land and to hand-over the possession of specific khasra numbers despite his request. 4. It was further pleaded that the defendant-petitioner was threatening to raise construction in the other joint land and to damage the land and demolish the kothi in question and was threatening to sell/exchange/mortgage the agricultural land and to hand-over the possession of specific khasra numbers despite his request. 4. The application was contested by the defendant-petitioner herein on the ground that there was no cause of action in the suit and the plaintiff- respondent had no locus standi to file the suit. Its maintainability was also challenged. It was claimed that the plaintiff-respondent had concealed the material facts. 5. On merit, the stand of the petitioner was that the suit land had been partitioned vide order dated 14.6.2004 passed by the Assistant Collector Ist Grade, Phagwara, and the said order had become final and Sanad Takseem had been issued on 15.7.2004 after the expiry of period of filing of appeal. It was further claimed by the defendant-petitioner that by partition he was allotted Khasra Nos. 556/1/9-9, 557(11-13) and 558/1(6-7) wherein he has raised construction and a boundary. It was also claimed that this land has a residential house, submersible pump and laid foundation to raise marriage palaces etc. It was also claimed that he is in exclusive possession of this land. It was also the case of the petitioner that the property mentioned in the headnote (c) has been actually partitioned and the area measuring 2 kanals 2 marlas in village Chak Hakim fell to the share of the defendant-petitioner which he converted into a passage and connected the same with the property of village Mehat. The property underneath the passage was claimed to be exclusive of the defendant-petitioner to which the plaintiff-respondent had no concern. 6. It was also pleaded that the plaintiff-respondent has been allotted his share towards southern side along with brother Hardip Singh which area is more valuable. It was further claimed that the Court had no jurisdiction to try the present. It was also pleaded that the petitioner was not raising any construction or changing the nature of the suit property as described in the headnotes (b) and (d) of the plaint. 7. The learned Courts below came to the conclusion that once a specific application for setting the ex parte proceedings has been filed and in case the same is allowed, the proceeding will reopen. 7. The learned Courts below came to the conclusion that once a specific application for setting the ex parte proceedings has been filed and in case the same is allowed, the proceeding will reopen. And, therefore, under these circumstances, the trial Court was right to grant injunction being efficacious remedy. The learned Courts below further held that it was still disputed whether the suit property stands partitioned and in case the defendant- petitioner goes on raising construction, then it will patently amount to ousting the plaintiff from joint property. 8. The learned Courts below further held that in the circumstances of the present case, the property has to be taken as joint as the partition proceedings are under challenge by the plaintiff-respondent before the Revenue authorities. In these circumstances, it was held that the change of nature of the suit land would affect the right of co-owner. Accordingly, it was held that the defendant-petitioner could not be allowed to change the nature of the land by raising construction and thus balance of convenience was held to be in favour of the plaintiff-respondent and it was also held that he would suffer an irreparable loss. Therefore, it was held that the suit filed by the plaintiff-respondent was maintainable. 9. Mr. Arun Palli, learned counsel appearing for the petitioner, vehemently contended that passing of order dated 14.6.2004 partitioning the land and grant of Sanad Takseem was not disputed merely because an application for setting aside the said order was filed without there being any stay, it could not be presumed that the property was joint. The contention of the learned counsel for the petitioner was that once an order passed by the competent authority was in full force, the same be given effect to. It was further pointed out that in fact the application moved by the plaintiff-respondent for setting aside the ex parte order has been dismissed by the Courts below. 10. The learned counsel also brought to the notice of this Court that the appeal filed by the plaintiff-respondent against the order of partition has also been dismissed by the Appellate Court on 32.3.2006. Therefore, on the basis of these facts, it was mentioned that the plaintiff-respondent had no prima facie case nor balance of convenience was in his favour. 11. The learned counsel also brought to the notice of this Court that the appeal filed by the plaintiff-respondent against the order of partition has also been dismissed by the Appellate Court on 32.3.2006. Therefore, on the basis of these facts, it was mentioned that the plaintiff-respondent had no prima facie case nor balance of convenience was in his favour. 11. It was next contended that once the land between the co-sharers has been partitoned and each co-sharer was given specific khasra number and possession was duly delivered, no injunction can be granted against the petitioner from the use of land the way he wanted. 12. On the other hand, Mr. S.S. Siao, learned counsel appearing for the respondent, contended that appeal against the order of the Appellate Court has been filed before the Commissioner and, therefore, the matter is still subjudice and no fault can be found with the orders passed by the learned Courts below. 13. I have heard the learned counsel for the parties and find force in the contentions raised by the learned counsel for the petitioner. Once it was brought on record that the land in dispute has been partitioned by way of a valid order which was still in force, it could not be prima facie said that the property is joint and, therefore, this finding of the learned Courts below cannot be sustained as the orders passed by the learned Courts below proceed on this presumption. 14. Accordingly, this revision petition is allowed and the impugned orders are set aside and the application moved by the plaintiff-respondent under Order 39 Rules 1 & 2 CPC is hereby dismissed. However, it is made clear that the petitioner herein cannot alienate the property beyond his share as ordered by the learned Courts below nor he would part with possession to any party beyond his share. Petition allowed.