RAJ KUMAR Vs. SHAMSHER SINGH

JUDGEMENT

(1.) By virtue of the instant petition preferred under Article 227 of the Constitution of India, petitioner has sought setting aside of order dated July 22, 2016 (Annexure P-2) passed by the Civil Judge (Junior Division), Hansi, whereby an application moved under Order 39, Rule 1 and 2 CPC read with section 151 CPC has been dismissed, as well as judgment dated October 10, 2016 (Annexure P-1) passed by the Additional District Judge, Hisar, vide which, an appeal preferred by the petitioner against order dated July 22, 2016 has been dismissed.

(2.) While assailing the impugned orders, it has been argued with vehemence by learned counsel for the petitioner that the same are absolutely against the evidence available on file and settled canons for governing the grant of injunction. Both the courts below have erred in allowing the application moved by the respondent - plaintiff under Order 39 Rules 1 and 2 CPC, even though, he has failed to establish his actual physical possession over the disputed property. The courts below have only raised a presumption that the house seems to be abandoned being in dilapidated condition and have held prima facie possession of the respondent - plaintiff while restraining the petitioner - defendant from interfering in his possession as well as from raising any sort of construction over the same. Further, the courts below have relied upon the entries appearing in jamabandi for the year 2013-14 which are not relevant for disposal of the instant lis, especially in view of the fact that the land is not under cultivation, rather, it is located in the residential area. On the other hand, it stands amply proved that an exchange took place between forefathers of both the parties to the suit, way back nearly about 60-70 years ago, in pursuance of which, petitioner - defendant has been residing in the suit property for the last many years. Subsequent to the exchange, a family settlement was also arrived at between petitioner - defendant and his brothers. So, the possession of the property, on the basis of family settlement and exchange, stands proved.

(3.) Learned counsel for the petitioner has further contended that even as per the averments made in the plaint, respondent - plaintiff has claimed himself to be the owner to the extent of ? .. " share in the land measuring 150 kanal 8 marlas comprised in Khasra No.56/15/4(1-1), Khewat No.43, Khatoni No.46 to 48, as per jamabandi for the year 2013-14, and the other co-sharers have not been impleaded as party in this suit. In such a situation, it can be said that respondent - plaintiff has not approached the court with clean hands and suppressed the material facts. Both the courts below have fallen in error which has resulted into causing of great prejudice and hardship to the petitioner - defendant while allowing the application for ad-interim injunction. Neither the prima facie case is made out in favour of the respondent - plaintiff nor the balance of convenience lies in his favour. He is also not going to suffer any irreparable loss as he is not in possession of the disputed property. Thus, the impugned order dated July 22, 2016 passed by the trial court, as upheld by the lower appellate court vide its judgment dated October 10, 2016 are not sustainable in the eyes of law and are liable to be set aside by way of acceptance of the instant revision petition.