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2013 DIGILAW 983 (PNJ)

Sukhwant Singh v. Garja Singh

2013-08-01

JASWANT SINGH

body2013
JUDGMENT Mr. Jaswant Singh, J.:- This order shall dispose of both the aforementioned Civil Revisions preferred by the defendants against the common orders passed by courts below; whereby the application of respondent nos.1 & 2/plaintiffs for grant of temporary injunction has been partly allowed and the petitioners before this Court have been restrained from raising further construction over the suit property. 2. For the sake of convenience facts are being taken from CR No.4581 of 2013, filed by defendant no.2577-Orchid Pvt. Ltd. Plaintiffs/respondent nos.1 & 2 filed a suit for separate possession of their respective shares by way of partition in the land falling in Khewat/Khatauni numbers mentioned in the plaint on the basis of ownership. It was further stated that defendant nos.1 to 8, who are interfering in the possession of the plaintiffs be restrained from interfering in the same and it was further stated that defendant nos.1 to 8 had further sold away the property through sale deeds dated 01.03.2011 Annexures P-1and P-2 to defendant no.2577-Orchid Pvt. Ltd., therefore, through interim application, interim stay was sought from being dispossessed from the suit property. 3. Upon notice, defendant nos.1 to 8/respondent no.3 to 10 in CR No.4581 of 2013 contested the application as well as the main suit by stating that the plaintiffs/respondent nos.1 & 2 are not in possession of any part of the property and rather after selling of the land by them, it is defendant no.2577/petitioner in Civil Revision No.4581 of 2013 who is in possession and have constructed a boundary wall with two rooms for security staff. It was further stated that an FIR already stands lodged by defendant no.2577 against plaintiffs and the said criminal case is already pending adjudication. Thus, it is apparent that the plaintiffs/respondent nos.1 & 2 are not in exclusive physical possession of the suit property. Other averments were denied and prayer was made for dismissal of the application. 4. After hearing learned Counsel for the parties, learned trial Court vide its order dated 03.12.2011 partly allowed the application of the plaintiffs/respondent nos.1 & 2 and held that the plaintiffs/respondent nos.1 & 2 are not in possession of any part of the suit property. Other averments were denied and prayer was made for dismissal of the application. 4. After hearing learned Counsel for the parties, learned trial Court vide its order dated 03.12.2011 partly allowed the application of the plaintiffs/respondent nos.1 & 2 and held that the plaintiffs/respondent nos.1 & 2 are not in possession of any part of the suit property. However, in order to save the suit property, defendant nos.1 to 8 and defendant no.2577 (petitioners herein) were restrained from raising further construction over the porition as mentioned in the site plan attached with the plaint as Annexure-I. Aggrieved against the same, appeals were filed by the petitioners herein and same were also dismissed by the learned Additional District Judge, SAS Nagar, Mohali vide its common order dated 08.07.2013. Hence the present revision petitions. 5. I have heard learned Counsel for the parties and have also gone through the case file carefully with their able assistance. 6. Learned Counsel for the petitioners have vehemently argued that as per the case of the plaintiffs, they are co-owners to the extent of 67 Kanals in the entire bigger chunk of land as per revenue record i.e. jamabandi for the year 2006-07. It was argued that since the plaintiffs/respondent nos.1 & 2 are not in possession of any portion of land, therefore, they cannot seek injunction against the co-sharer who is in exclusive possession of the property, as has been held by both the courts below and also as is evident from sale deeds executed by defendant nos.1 to 8 in favour of defendant no.2577. Thus grant of injunction by restraining petitioner from raising construction is an abuse of process of law. It was further argued by the learned Counsel for the petitioners that the learned Courts below have exceeded their jurisdiction by partly allowing the injunction application and restraining the petitioners from raising further construction over the suit land, as neither there was any prayer qua not raising construction nor restraining the defendants/petitioners would serve any purpose as finally any construction made shall be subject to final adjudication by the Civil Court. Thus prayer was made for allowing the present revisions and setting aside the impugned orders. 7. On the other hand, learned Counsel for respondent nos.1 & 2/plaintiffs have argued that the plaintiffs/respondent nos.1 & 2 had filed an application for partition before the Revenue Authorities. Thus prayer was made for allowing the present revisions and setting aside the impugned orders. 7. On the other hand, learned Counsel for respondent nos.1 & 2/plaintiffs have argued that the plaintiffs/respondent nos.1 & 2 had filed an application for partition before the Revenue Authorities. However, the said application was dismissed on the ground that since there is substantial construction over the property hence same cannot be partitioned. It was further argued that it is only the suit property as marked in blue portion in the site plan attached with the plaint as Annexure-I which is not having any construction and the remaining land, which is joint has already been constructed and therefore in order to save the character of the suit property from being changed, the courts below had rightly restrained the petitioners herein from raising the construction. It was further argued that petitioners in CR No.4577 of 2013 i.e. defendant nos.1 to 8 have no case at all because admittedly these petitioners have already sold the property to Orchid Space Designs Pvt. Ltd./defendant no.2577 i.e. the petitioner in CR No.4581 of 2013 and hence it is not understandable why they are opposing the impugned orders. Furthermore, the learned Counsel for the respondent has made me go through the written statement filed by defendant nos.1 to 8, whereby they had categorically stated that they did not intend to raise any construction. Thus under these circumstances it has been argued that there is no infirmity in the orders passed by the courts below and the same deserves to be upheld. 8. After hearing learned Counsel for the parties and perusing the record, this Court is of the considered view that the present revision petitions are devoid of any merit and the same deserve to be dismissed. It is not in dispute in the case in hand that Orchid Space Designs Pvt. Ltd. had bought the sought property from defendant nos.1 to 8 through two sale deeds dated 1.3.2011 and since then Orchid Space Design Pvt. Ltd. is in possession of the property and have raised a boundary wall with two rooms for security staff. It is not in dispute in the case in hand that Orchid Space Designs Pvt. Ltd. had bought the sought property from defendant nos.1 to 8 through two sale deeds dated 1.3.2011 and since then Orchid Space Design Pvt. Ltd. is in possession of the property and have raised a boundary wall with two rooms for security staff. It is further not in dispute that a criminal case was filed after the aforesaid sale deeds against the plaintiffs/respondent nos.1 & 2 by defendants, who are alleged to be influential people, and due to said case, thus, it is prima facie quite believable that the plaintiffs had to leave the property and run for their lives. In the present case, the sole dispute amongst the parties is that the courts below ought to have not partly allowed the application of respondent nos.1 & 2/plaintiffs by restraining the petitioners from raising any further construction and the reason given by the petitioners is that since the petitioners are in exclusive possession of the property, therefore, plaintiffs/respondent nos.1 & 2 have no right to injunct them. However, it is settled position of law that a co-sharer has to be considered to be owner of each and every part of land and until and unless the same is partitioned, he will remain owner to the extent of his share. Admittedly, at this stage, it has to be stated that the plaintiffs/respondent nos.1 & 2 are not in possession of the property, however, the learned Courts below have rightly restrained the defendants/petitioners herein from raising further construction, as any further construction on the suit property, which concededly is the only vacant piece of land, in the entire bigger chunk of land, would lead to great inconvenience to the plaintiffs/respondent nos.1 & 2. M/s Orchid Space Designs Pvt. Ltd. is a construction company which would after construction, perhaps/possibly sell off the property to numerous people and if in case the plaintiffs/respondent nos.1 & 2 succeed in their suit, it would lead to great injustice and inconvenience to a lot of people who might be residing there at that point of time besides prejudicing the plaintiffs. Each and every order of injunction has to be passed keeping in view the various circumstances because the courts while deciding interim applications have to see the larger interest of the parties and not to confine itself to legal principles only. Each and every order of injunction has to be passed keeping in view the various circumstances because the courts while deciding interim applications have to see the larger interest of the parties and not to confine itself to legal principles only. In the present case, if the petitioners are restrained from raising construction, this Court is of the opinion that the nature and character of the property would be preserved and both the parties would be saved from unnecessary inconvenience and harassment at a subsequent stage, when the suit is decided either way. Moreover, the Hon’ble Supreme Court in Maharwal Khewaji Trust(Regd.), Faridkot Vs. Baldev Dass 2004(8) SCC 488 has held that in a dispute of similar nature as the present one that the inclination of the courts has to be to save the property and preserve the nature and character of the same during the pendency of the suit, because this may lead to loss or damage to the party who may ultimately succeed and may further lead to multiplicity of litigation. In view of the above, finding no merit in both the aforesaid revision petitions, the same are hereby dismissed.