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2021 DIGILAW 1393 (RAJ)

Manjeet Kaur v. Jaspinder Singh

2021-08-06

DINESH MEHTA

body2021
JUDGMENT Dinesh Mehta, J. - The petitioner herein has preferred the present contempt petition praying that the respondents be punished under Section 12 of the Contempt of Courts Act, 1971 for flouting the order dated 28.10.2015, passed by this Court in S.B. Civil First Appeal No.324/2015. 2. It may be noticed that the plaintiff Gajan Singh had filed a suit for specific performance of agreement to sell dated 07.02.1991 and 28.05.1991, executed in his favour, which was dismissed by the trial Court vide its order dated 03.09.2015. 3. An appeal came to be filed by the LRs of said Gajan Singh (respondents No.1 and 2 herein), which was admitted in the presence of both the parties and following interim order came to be passed on 28.10.2015:- "Meanwhile status quo of the possession of the suit property, as it exists today, shall be maintained by all the parties." 4. Mr. R.D.S.S. Kharlia, learned counsel for the petitioner submitted that on the date of passing of the interim order by this Court, petitioner was in possession and has been forcibly ejected by the respondents. 5. Mr. Kharlia (in the presence of his client - who was defendant in the suit) makes an assertion that the petitioner came into possession on 16.09.2015, after the judgment and decree dated 03.09.2015 was passed by the trial Court dismissing plaintiffs suit. 6. In a bid to establish petitioner s possession, learned counsel relies upon Annex.Rej/6 (page 126) - a report dated 24.10.2015 of the Patwari and contends that the petitioner had got done the demarcation (Nishandehi) of the disputed land. He also relies upon water slips dated 16.09.2015 and 22.11.2016 (page 117 and 116 respectively) and submits that these water slips containing petitioner s name establish petitioner s possession over the subject land. 7. Ms. Nidhi Singhvi, learned counsel for the respondents submits that during the trial, a Commissioner was appointed by the trial Court, who had given a categorical finding about her clients (plaintiffs ) possession over the land. She further submits that during the pendency of present contempt petition a judicial enquiry was ordered by this Court on 16.08.2017, in furtherance whereof the Chief Judicial Magistrate, Sriganganagar has submitted his report clearly indicating that on 28.10.2015, the respondents were in possession. She further submits that during the pendency of present contempt petition a judicial enquiry was ordered by this Court on 16.08.2017, in furtherance whereof the Chief Judicial Magistrate, Sriganganagar has submitted his report clearly indicating that on 28.10.2015, the respondents were in possession. While maintaining that her clients had an uninterrupted possession since 1991, she contends that the petitioner has tried to create paper-evidence to show her possession. She further adds that even the documentary evidence placed by the petitioner does not prove petitioner s possession. 8. Heard and perused the record. 9. According to petitioner s own case, she has come into possession only after passing of the judgment and decree dated 03.09.2015. It is submitted by Mr. Kharlia that after coming into possession the water slips were got issued, whereas in the contempt petition, the petitioner has asserted that as she had the possession the land was recorded in her name on 09.09.2016. 10. Petitioner has made the finding recorded in para No.34 of the judgment and decree dated 03.09.2015 as a basis to contend that she was in possession during trial. Such assertion is found incorrect in the face of petitioner s own version that she came into possession on 16.09.2015 (after the judgment and decree was passed on 03.09.2015). 11. As such, the petitioner has taken possession of the land after the judgment and decree dated 03.09.2015, which shows that she did not have possession of the land, when the trial Court had passed the judgment on 03.09.2015. 12. As the title of the land was with the petitioner, plaintiffs suit was dismissed; still in an appeal filed by the plaintiffs (contemnors), a Coordinate Bench of this Court ordered to maintain status quo, which clearly suggests that on the date of decree, present petitioner (defendant) did not have possession. 13. Concededly the petitioner has come into possession (on 16.09.2015) after the dismissal of plaintiffs suit. Neither in the contempt petition nor during the course of arguments it has been informed as to how the petitioner has procured possession. 14. This being the position, the interim order, which was passed by this Court on 28.10.2015 for maintaining the status quo of the suit property, cannot be permitted to be used by a person, who claims to have taken possession after the suit was decreed. 15. Mr. 14. This being the position, the interim order, which was passed by this Court on 28.10.2015 for maintaining the status quo of the suit property, cannot be permitted to be used by a person, who claims to have taken possession after the suit was decreed. 15. Mr. Kharlia also argued that the interim order was passed on 28.10.2015 clearly stipulating therein that the status quo, as it exists today, shall be maintained. According to him, effect of the interim order passed by this Court is that, whosoever was in possession on 28.10.2015 should remain in possession. 16. The argument of Mr. Kharlia is both legally and factually untenable in face of the finding of judicial enquiry. That apart, the petitioner was admittedly not in possession on the date of decree and she has not pleaded or showed as to how she came into possession on 16.09.2015. Ignoring such disputed factual aspects if the contempt proceedings are proceeded with, the litigants would be encouraged to change position of the possession of the disputed properties before the rival party can approach the higher forum and get an injunction. 17. In the opinion of this Court such endevour on the part of a party, who was admittedly neither in possession of the disputed property on the date of dismissal of suit nor has been found to be in possession even on the date of interim order (28.10.2015) as is evident from perusal of report of the judicial enquiry, cannot maintain the present contempt petition. 18. Having regard to aforesaid and considering that in a judicial enquiry got conducted by this Court vide its order dated 16.08.2017, the respondents contemnors have been found in possession on the date of the interim order i.e. 28.10.2015 and that a coordinate Bench of this Court, considering the same, has dispensed with personal appearance of respondent No.3, this Court does not deem it appropriate to continue these proceedings for contempt. 19. In the contempt proceedings, the disputed fact as to who, out of the petitioner and respondents, was in possession, cannot rather should not be determined. More particularly, when both the parties have filed cross FIRs levelling allegations of forcibly taking possession. Going into this question and then, recording any finding in this regard may prejudicially affect the trial/result of the cases pending between the parties (FIR No.250/2015; 54/2016; 55/2016; and other civil/criminal proceedings including FIR No.58/2015). 20. More particularly, when both the parties have filed cross FIRs levelling allegations of forcibly taking possession. Going into this question and then, recording any finding in this regard may prejudicially affect the trial/result of the cases pending between the parties (FIR No.250/2015; 54/2016; 55/2016; and other civil/criminal proceedings including FIR No.58/2015). 20. The notices of contempt are hereby discharged. 21. The contempt petition is thus, dismissed.