SWARAN SINGH Vs. BALBIR SINGH

JUDGEMENT

(1.) THE present petition arises out of a suit filed by the respondents Balbir Singh and Paramjit Singh for permanent injunction restraining Swaran Singh, the present petitioner from interfering with the possession of the plaintiff on the suit on the suit land. Alongwith the suit, an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure, for temporary injunction was also filed. The dispute pertains to a passage in Khasra No. 30/7/1 (5-2 ). The trial Court sought the assistance of a local Commissioner, who visited the spot of January 20, 1992, and recorded her report to the effect that from the nature of path, it appeared that an attempt had been made to close it as paddy seedlings and thorny bushes had recently been planted. It was also observed by the Local Commissioner that this was the only passage that was available with the plaintiffs-petitioner to approach their residential house and the contours of the path going to their house were clearly discernible except for the portion in the aforesaid Khasra Number which had been recently obstructed. The trial Court, accordingly, allowed the injunction prayed for on the basis of the above report. Aggrieved thereby, the plaintiffs filed an appeal before the Additional District Judge, Kapurthala, who reversed the order and granted the injunction holding that the report of the Local Commissioner was not to be seen at that stage and only the documents put on record were required to be taken into account (which were revenue records i. e. copy of a jamabandi as also of the Khasra girdwari ). The Appellate Court held that prima facie, it appears that the plaintiff-respondent had balance of convenience in their favour. Aggrieved by the order of the Appellate Authority, the present petition has been filed by the defendant-petitioner.

(2.) I have gone through the orders of the Courts below as also heard the argument of the learned counsel for the petitioner Mr. G. S. Gandhi.

(3.) IT will be seen from a reading of the report of the Local Commissioner that the passage in dispute has been recently constructed and further that the said passage was the only one for ingress in the house of the petitioner defendant. Reference made by the Appellate Authority on Babu Ram alias Parma Nand v. Jaswant, (1973) 75 P. L. R. 566, to support his reasoning that the report of the Local Commissioner was not to be seen at that stage, is absolutely mis-conceived. Such a question posed in that judgment was absolutely different, Mr. Gandhi, has, however, relied on Molu Ram v. Baje Singh, 1991 P. LJ. 543, for his assertion that a report of a Local Commissioner can be gone into even at the stage of consideration of the application for temporary injunction. As a matter of fact, the Appellate Court has not relied on any document whatsoever but has merely made reference to the jamabandi and the Khasra girdwari without giving details as to what exactly was stated in them. The order of the Appellate Authority, therefore, cannot be sustained.