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2009 DIGILAW 1701 (PNJ)

Shis Ram & another v. Karta

2009-09-24

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J. - This Revision-petition is directed against the order dated 26.07.2005, rendered by the Court of Civil Judge (Junior Division), Kurukshetra, vide which it allowed the application under Order 39 Rules I and 2 read with Section 151 CPC and the order dated 22.1 1.2005, rendered by the Court of Additional District Judge, Kurukshetra vide which it dismissed the Appeal. 2. The plaintiff claimed himself to be the owner in joint possession to the extent of 1/6 share, in the land, as fully detailed in the head note of the plaint. It was stated that the plaintiff was residing at Village Matloda, District Hisar. He used to come to village Narkatari to see the agricultural land. Defendant Nos. I and 2, in collusion with defendant No.3 and Halka Patwari, got declared the plaintiff civily dead. It was further stated that, on the basis of false report, mutation was sanctioned, in favour of respondents No.1 and 2. It was further stated that the plaintiff was very much alive and the said mutation could not be sanctioned showing him to be civily dead. It was further stated that the Revenue Authorities had violated the provisions of law and illegally declared him civily dead. It was further stated that the defendants taking advantage of the illegal mutation, were bent upon to alienate the Suit property. They were many a time, asked not to do so, but to no avail. On their final refusal, left with no alternative, a Suit for declaration and consequential relief of permanent injunction was filed. 3. Alongwith the Suit, an application, under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure, seeking ad-interim injunction was filed. 4. Defendant Nos.1 and 2/Revision petitioners put in appearance, and filed written statement and also reply to the application. It was pleaded that the Suit had been filed by an imposter and, therefore, the same was not maintainable. It was stated that the mutation had been rightly sanctioned by the Revenue Authorities, on the application of defendant Nos. I and 2/Revision petitioners. It was further stated that defendant Nos. I and 2/ Revision-petitioners were the owners in possession in equal shares of the agricultural land. It was stated that the mutation had been rightly sanctioned by the Revenue Authorities, on the application of defendant Nos. I and 2/Revision petitioners. It was further stated that defendant Nos. I and 2/ Revision-petitioners were the owners in possession in equal shares of the agricultural land. It was further stated that they moved an application before the Revenue Authorities, to declare the plaintiff civily dead, and after adopting the due procedure, they rightly sanctioned the mutation. It was further stated that a news item was also published, in the newspaper, to this effect. It was further stated that if any person, from the public had any objection, he could certainly appear at the time of sanctioning of mutation. It was further stated that the Suit as also the application, filed by an imposter be dismissed. 5. After hearing the Counsel for the parties and, on going through the record, the Trial Court allowed the application under Order 39 Rules I and 2 read with Section 151 CPC. 6. Feeling aggrieved, an Appeal was preferred which was dismissed by the Court of Additional District Judge, Kurukshetra, vide order dated 22.11.2005. 7. Still feeling dissatisfied, the instant Revision-petition, has been filed by the Revision-petitioners. 8. 1 have heard the Counsel for the Revision-petitioners, and have gone through the documents, on record carefully. 9. The Counsel for the Revision-petitioners, submitted that the Suit as also the application was filed by an imposter. He further submitted that Karta, plaintiff, who filed the Suit had already been declared civily dead, and a mutation, in that regard, was also sanctioned by the Revenue Authorities. He further submitted that, under these circumstances, the Courts below were wrong in accepting the application, under Order 39 Rules I and 2 read with Section 151 CPC. He further submitted that the orders of the Courts below, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the Revision-petitioners, in my considered opinion, the Revision-petition, deserves to be dismissed, for the reasons to be recorded hereinafter. Karta-plaintiff, who filed the suit, is the brother of defendant Nos.l and 2/Revision-petitioners. No doubt, the Revenue Authorities sanctioned mutation, showing that Karta was civily dead, on the information supplied by defendant Nos.1 and 2/Revision-petitioners. Karta-plaintiff, who filed the suit, is the brother of defendant Nos.l and 2/Revision-petitioners. No doubt, the Revenue Authorities sanctioned mutation, showing that Karta was civily dead, on the information supplied by defendant Nos.1 and 2/Revision-petitioners. It may be stated here, that the mutation, does not confer any right, in respect of any property, on a person. The question as to whether Karta has demised or is alive, is yet to be finally decided, by a Competent Court of Civil Jurisdiction. Until and unless that question is finally decided by a competent Court of jurisdiction, it cannot be held that Karta was civily dead. At the time of deciding the application, under order 39 Rules I and 2 read with Section 151 CPC, the Court was not required to deal with the merits of the case. The Courts below were only required to see, as to whether, any primafacie, existed in favour of the plaintiff, whether he was to suffer an irreparable loss, in case, the injunction was refused, and whether the balance of convenience lay in his favour. It is evident from the order dated 22.11.2005, rendered by the Appellate Court, that during the course of arguments, one person claiming himself to be Karta, appeared and he also placed on record, his photograph. Since before the appearance of the defendants, he left the Court, he could not be identified. The Courts below rightly held that at the stage of deciding the application, under Order 39 Rules I and 2 read with Section 151 CPC, it could not be finally determined, whether Karta-plaintiff was civily dead or not. Karta was the owner in joint possession of the land measuring 17 kanals 16 marlas. The Courts below were right in holding that until and unless the question, as to whether, Karta was civily dead or not, was finally decided, it could not be said that he was not the joint owner in joint possession of the property, in dispute. The Courts below, thus, found the co-existence of all the three ingredients, required for the grant of ad-interim injunction and, thus, granted the same. The orders of the Courts below, do not suffer from any illegality, material irregularity, or perversity, warranting the interference of this Court, in its Revisional jurisdiction under Article 227 of the Constitution of India. 11. The Courts below, thus, found the co-existence of all the three ingredients, required for the grant of ad-interim injunction and, thus, granted the same. The orders of the Courts below, do not suffer from any illegality, material irregularity, or perversity, warranting the interference of this Court, in its Revisional jurisdiction under Article 227 of the Constitution of India. 11. For the reasons recorded above, the Revision-petition, being devoid of merit, must fail and the same is dismissed. Petition dismissed.