RAM SINGH Vs. ATTAR SINGH

JUDGEMENT

(1.) This is a revision undersection 115 of the Code of Civil Procedure from the judgment and order dated 4th June, 1984 made by the Additional Senior Sub Judge, Delhi by which the learned Judge reversed the order dated 6th January, 1984 of the trial court, and finally rejected the application of the plaintiff in the suit for grant of temporary injunction. However, on admission of the revision, temporary injunction was granted by this court on 25-7-84 restraining the defendants-respondents from interfering with peaceful possession of the petitioner-plaintiff with respect to one half share of land in suit.

(2.) The brief facts are that the land measuring 22 bighas 17 biswas, Khasra Nos. 952, 953, 954 and 1052 min in village Kilokari, Tehsil Mehrauli, New Delhi was owned by a Muslim who migrated to Pakistan and it became and evacuee property. Samman, father of the plaintiff and Hetu, father of the three defendants, were joint non-occupancy tenants in the land since before 1947. After migration of the muslim owner they continued in possession of the land under the Custodian of Evacuee Property. Samman died in 1963 and Hetu died in 1980. The said land was being cultivated jointly by Samman and Hetu. The plaintiff alleges that after the death of his father, he started cultivating half share of the land towards North lieu of his half share in joint non-occupancy tenancy rights separately and Hetu continued to cultivate the other half towards South, that there is a 'doll' in between the two portions at the spot, that afier the death of Hetu, the defendants in June 1983 threatened to dispossess him and with that view, they started criminal proceedings under Sections 107, 145, 147 Cr.P.C. and 447, 511 Indian Penal Code ., that he filed a Criminal Revision which was dismissed by the Additional Sessions Judge. He filed a petition under Section 482 of the Code of Criminal Procedure in the High Court for quashing the criminal proceedings. A local commissioner was appointed by the High Court, who submitted his report dated 15-11-1983 and on 16th November, 1983, H.L. Anand, J. directed that neither of the parties would enter upon the land in dispute, but the parties were at liberty to approach any court of competent jurisdiction in relation to the disputes between them. The plaintiff, therefore, filed the present suit-for a decree for permanent injunction restraining the defendants from interfering in his peaceful possession and enjoyment of the half share in the land towards North. Along with the plaint, he filed an application under Order 39 Rules I and 2 for the grant of a temporary injunction.

(3.) The defendants have pleaded that they have been in possession of the land in suit for the last 30 years, and cultivating the same exclusively, that the so-called doll as alleged by the plaintiff is a water channel meant for irrigating the land, that after the death of their father, Hetu, they applied for mutation of their names in the Revenue records, that their possession has been open, hostile and continuous, and they have matured their title as owners by adverse possession. Defendants admit that Samman and Hetu were joint non-occupancy tenants of the land In suit measuring 22 bighas 17 biswas, but allege that Samman stopped cultivating the land in 1953-54 and since then the defendants along with their father have been exercising their exclusive rights over the land in question. The defendants allege that as the plaintiff was threatening to occupy the land forcibly, they were forced to apply on 4-6-83 under Section 145 of the Code of Criminal Procedure to protect their possession, that the criminal revision filed by the plaintiff was dismissed on 17-9-83 and his petition under Section 482 of the Code of Criminal Procedure was dismissed by the High Court on 14-12-1983.