HARBANS SINGH Vs. NAHAR SINGH

JUDGEMENT

(1.) A suit was filed by the plaintiff-petitioner for permanent injunction against the defendant-respondent restraining him from interfering with his possession over the land bearing Khasra No. 410 measuring 3 Kanals 3 Marlas, and Khasra No. 411 measuring 16 Kanals 9 Marlas, in village Jangpura, Tehsil and District Ludhiana, claiming himself to be the owner of the abovesaid land. Written statement was filed by the respondent in which the ownership of the plaintiff in the said Khasra numbers was admitted, but it was averred that an order had been passed by the Consolidation Officer on 18th December, 1975, which was being implemented and, therefore, the Civil Court under section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, had no jurisdiction to go into the same. In the replication filed by the plaintiff, the said order was challenged as illegal and void on the ground that these Khasra numbers had been allotted to the plaintiff earlier by the Consolidation authorities and the application by the defendant challenging the said order had been dismissed in 1966 and the appeal against that had also been dismissed in 1967. The order of the Consolidation Officer, dated 18th December, 1975, relied upon by the defendant in his written statement had been passed on the basis of an application by one Mahan Singh, but the said order was, in fact, a review of the previous order by which the application of the defendant had been dismissed. Thus, this order was without jurisdiction and void. During the pendency of the suit, an application was submitted for grant of temporary injunction. This application was dismissed by the trial Court and the appeal by the plaintiff-petitioner against the order also met the same fate. Perusal of the order of the trial Court as well as the appellate Court shows that an interim injunction was declined on the ground that the plaintiff-petitioner had no prima facie case and that the order, dated 18th December, 1975, by the Consolidation Officer did not amount to review of the previous order passed on the application of the defendant. It is not disputed that the land in dispute was in possession of the plaintiff-petitioner at the time of filing of the suit. The case of the defendant-respondent is that the consolidation authorities were only implementing their order, dated 18th December, 1975, and if in pursuance of the same possession of some areas comprised in Khasra Nos. 411 and 410 is disturbed, the plaintiff has no right to challenge the action of the consolidation authorities by way of suit in the Civil Court. It is not such a case in which the trial Court or the appellate Court was justified in giving their finding that the order of the Consolidation Officer, dated 18th December, 1975, was not an order of review in the application for interim injunction. This question could be gone into only on merits while deciding the suit so that the plaintiff-petitioner could challenge the same by way of appeal and if the appeal was also dismissed, then by filing a second appeal in the High Court. By arriving at this conclusion in the interim injunction application the Courts below virtually have decided the suit and the same was not within the jurisdiction of the Court. Besides, the finding that the order, dated 18th December, 1975, of the Consolidation Officer had not been challenged by the plaintiff in the suit, is also not borne out from the facts. It is not denied that this order was not challenged in the original plaint. However, when the same was relied upon by the defendant-respondent in the written statement, it was challenged to be void and illegal in the replication filed by the plaintiff - replication is a part of the pleadings and thus the validity of this order having been challenged, an issue could be framed on the same and the suit decided on merits. The plaintiff-petitioner admittedly being in possession of the land in dispute and having been threatened of dispossession, the plaintiff has a prima facie case so as to warrant the issuance of an interim injunction. The finding of the Courts below dismissing the application of the plaintiff is based on absolutely wrong approach and is thus without jurisdiction. The impugned order is consequently set aside and the application of the plaintiff-petitioner is allowed. The defendant-respondent is restrained from dispossessing the plaintiff-petitioner during the pendency of the suit. The parties, through their counsel, are directed to appear in the trial Court at Ludhiana on 28th November, 1977. The record of the case may be sent back immediately. There will be no order as to costs.