GARLAND ESTATE PRIVATE LIMITED Vs. MITTAR SAIN JAIN

JUDGEMENT

(1.) The petition is against the order of injunction issued in a suit filed by the plaintiff respondent that the order passed by the revenue authorities ordering partition of properties as illegal, null and void and was liable to be set aside. The plaintiff was a coowner with the respondents is an admitted fact. The contesting respondents, who are the revision petitioners, are purchasers from major sharers of the property and engaged as colonizers for establishing a housing colony. In the partition proceedings, there had been a full-fledged contest by several persons, who are the owners, and the partition has been passed after taking note of all the contentions of parties. It is a matter of record that the petitioner had not been served and he was being attempted to serve in the village where he was not shown to be residing and the basis of the plaint is that the authorities had ordered munadi at the village even when there was return on summons that he was living away at Delhi and that he was, therefore, entitled to be served with notice and all the proceedings taken without notice will not bind him.

(2.) The lower appellate Court accepted the contention and allowed injunction in toto as sought for, although the trial Court had only granted a partial relief of injunction. By the order of injunction, the petitioners, who are the defendants in suit, have been restrained from utilizing their land allotted in the partition till the final disposal of the appeal.

(3.) The learned senior counsel for the petitioners would point out that it was not as if, all the parties were set ex parte, the partition proceedings were ordered after substantial number of persons who were the stakeholders had participated in the proceedings and the petitioner was intervening only at a belated stage after even acquisition proceedings have been started by the Government in respect of some of the portions involved in suit and finding that the property allotted during the partition has been acquired alongside the road, the petitioner is now trying to reopen the whole partition and secure a re-allotment with an intent to blackmail the petitioners to his whimsical expectation of large scale ransom by causing obstruction to development projects undertaken at huge costs. The petitioner has provided a plan showing that in the acquisition proceedings by the government, the petitioners/ defendants have themselves lost a large chunk of properties and as far as the plaintiff is concerned, it was a very small piece of land that was being lost. The issue of whether there could be an injunction also must be tested on known parameters of the plaintiff's strong prima facie case. Apart from the plaintiff, there were several other co-owners, who had participated in the partition proceedings and the order had been passed by the Assistant Collector, 1st Grade on 06.08.2009. There had been subsequent acquisition proceedings also when the notification under Section 4 and declaration under Section 6 had been issued under the Land Acquisition Act sometime in May, 2010. The plaintiff must have known at least then of the manner of vivisection of all the properties and the claims made by several owners that included the plaintiff as well. The suit itself has been filed only in November, 2011 long after the acquisition proceedings also. The learned senior counsel for the petitioners argues that there was nothing brought on record that show that the plaintiff had secured his proper address noted in the revenue records and hence, neither the defendants nor the authorities could be faulted if notice could not be actually served on him and notice had been sent only at the address which was available with the officials. Even if personal service was not done, publication by munadi was an accepted mode of service.