GURMAIL SINGH Vs. HARDYAL SINGH

JUDGEMENT

(1.) This revision petition filed under S. 115 of the Code of Civil Procedure, 1908 (for brevity 'the Code') is directed against the order dated 12-2-2002 passed by the Additional District Judge, Sirsa allowing the appeal filed against the order dated 16-8-2001 passed by the Civil Judge (Junior Division), Sirsa. The Civil Judge in its order had dismissed the application of the plaintiff-respondent No.1 for restraining the defendant-petitioner from alienating the suit land and also from interfering into the cultivating possession of the plaintiff-respondent No. 1 over the suit land. Thereafter, the Addl. District Judge has allowed the application of the plaintiff-respondent No. 1 restraining the defendant-petitioner from interfering into possession of the plaintiff-respondent No. 1 over the suit land.

(2.) Brief facts of the case as unfolded in this case are that the plaintiff-respondent No. 1 has filed a suit against the defendant-petitioner seeking declaration to the effect that he is owner in possession of the land measuring 29 kanals 12 marlas comprised in Sq. No. 73 Killa No. 9 (8-0), 10/1 (5-10), 10/2 (2-10) 11(8-0) 12/1(3-6) 19/1/2 (0-13) 20/1 (1-13) as shown and denoted with green colour in the rough site plan Annexure-A attached with the plaint situated in village Ellenabad, Tehsil Ellenabad, District Sirsa; and plaintiff-respondent No. 1 is also owner in possession of 282/702 share of land measuring 23 kanals 6 marlas comprised in Sq. No. 73 Killa No. 2-Min (5-16) 3-min (4-13) 4-min (4-13) 5 min (6-4), Sq. No. 72 killa No. 10 min (2-0), in lieu of which he is in cultivating possession of land measuring 9 kanals 7 marlas forming part of killas No. 2/2 and 3/3 of Sq. No. 73 as shown and described with yellow colour in rough site plan attached with the plaint, situated in village Ellenabad, Tehsil Ellenabad, District Sirsa and that defendant-petitioner has no right, title or interest in the above-mentioned land. It has further been claimed that proceedings in Civil Suit No. 701-C, dated 30-11-1998 title Gurmail Singh v. Lakha Singh are null and void, result of fraud, impersonation, forgery and the same is liable to be set aside and the judgment and decree dated 2-9-2000 passed in Civil Appeal No. 109 of 1999 titled as Gurmail Singh v. Lakha Singh passed by the then Addl. District Judge, Sirsa declaring the defendant-petitioner as owner in possession of the land measuring 67 kanals 6 marlas and the land equivalent to 202/466 share of land measuring 23 kanals 6 marlas are also liable to be set aside having been obtained by fraud and the judgment and decree dated 2-9-2000 passed in Civil Appeal No. 109 of 1999 is also to be revoked and forfeited and permanent injunction restraining the defendant-petitioner from alienating/transferring the above property and restraining them from interfering into the cultivating possession of the plaintiff-respondent No. 1 over the suit land or causing damage to the crops of the plaintiff-respondent No. 1 situated in killa No. 20/1 of Sq. No. 73 of the suit land in any manner whatsoever.

(3.) The defendant-petitioner and plaintiff-respondent No. 1 are real brothers and are sons of Lakha Singh, defendant-respondent No. 2. The defendant-respondent No. 2 was the owner of the suit land measuring 38 kanals 19 marlas. The plaintiff-respondent No. 1 became owner of this land in pursuance of the exchange of his house with his father defendant-respondent No. 2 for which report No. 810 was recorded in the Roznamcha on 23-8-2000 and mutation No. 11173 was sanctioned on its basis on 28-9-2000. The defendant-petitioner on the basis of some fraudulent decree passed in Civil Suit No. 701-C started asserting to be the owner in possession of the suit land as well as the other land owned by his father defendant-respondent No. 2. That decree was allegedly based on fraud/misrepresentation. FIR No. 582 dated 12-12-2000 under Ss. 419/420/467/120-B, IPC, Police Station City Sirsa, was also registered against the defendant-petitioner for obtaining fraudulent decree. It is in these circumstances that the afore-mentioned suit has been filed by the plaintiff-respondent No. 1. Along with the suit an application under Order 39, Rules 1 and 2 of the Code was also filed.