PARSHADI Vs. GOPI CHAND AND OTHERS

JUDGEMENT

(1.) THE Plaintiff Petitioner (hereinafter referred to as the Petitioner) claimed in a suit that one Chander Bhan had already paid the amount to the mortgagee and the sale of land in execution of the recovery of amount was illegal Defendants Nos. 1 to 6 had no right to do as the Petitioner had become owner with possession of the land in dispute by virtue of fore closure. A temporary injunction restraining the Respondents from interfering with the possession of the Petitioner was sought during the pendency of the suit. The trial Court ordered the status quo after holding that it was not established prima facie as to which party was in possession of the suit land. The lower appellate Court set aside the said order and found that the Plaintiff could not be held to be in possession of the suit land and hence, no injunction could be granted in his favour.

(2.) THE learned Counsel for the Petitioner urged that Jassi son of Nathan, father of Defendants -Respondents Nos. 7 and 8 purchased the land in dispute and mortgaged it with possession with Parshadi, Petitioner. The mutation for the mortgage was sanctioned in the year 1952 though the mortgage was alleged to have been made in the year 1952. Bhagwan Dass, predecessor -in interest of Respondents Nos. 1 to 6 purchased the land in dispute in Court auction in 1964. Bhagwan Dass got the land in dispute redeemed vide order dated September 10, 1986 of the Sub Divisional Magistrate, which order is under challenge in the suit, The learned Counsel further urged that in view of the application made by Bhagwan Dass for redemption wherein he specifically stated that the land in dispute was mortgaged with possession to the Petitioner for a consideration of Rs. 4,000/ on January 20, 1962 and the mortgage was oral, the Petitioner should be deemed to be in possession of the land in dispute. The lower appellate Court has erroneously set aside the finding of the trial Court with respect to possession and, thus, committed an error of jurisdiction in reversing the finding with respect to status quo. The counsel for the Petitioner relied upon Balwant Singh and Ors. v. Gram Panchayat Partal 1981 P.L.J. 127. Jaswant Rai v. Smt. Dhanwanti Devi and Anr., A.I.R. 1974 P&H. and Hary. 197 and Ram Kumar and Ors. v. Tara Chand and Ors. (1977) 79 P.L.R. 737. It was further urged that the revenue entries are wrong and are contrary to pleadings; thus cannot be relied upon. One cannot be recorded to be owner as well as tenant. As Bhagwan Dass became owner in view of purchasing the land in auction, he at the same time cannot be mortgagor as well as tenant.

(3.) IN my considered view, prima facie it emerges from the revenue record produced in the suit that the land in dispute is in possession of the Respondents. Mutation shows that Jassi had mortgaged the suit land in favour of the Petitioner. Bhagwan Dass became the owner having purchased the land in dispute in Court auction though in revenue record Jassi had been shown to be in possession till the date of mutation sanctioned in favour of Bhagwan Dass. Prima facie the contention raised by the counsel for the Petitioner to the effect that the sale in execution of a decree is void because of the payment having been made to the decree holder outside the Court cannot be taken note of as the auction was confirmed, possession given and the decree holder had withdrawn the amount from the Court. Consequently, the auction -purchaser had stepped into the shoes of Jassi, judgment debtor, who was undisputedly the owner of the land in dispute There is no dispute that Jassi was recorded to be in possession of the land in dispute in the year 1960 -61 in self cultivation. There is no dispute with respect to the correctness of the jamabandi for the year 1960 -61. In the later years Bhagwan Dass has been shown to be in possession though Jassi continued to be recorded as owner. It is only in the jamabandies for the years 1974 -75 and 1980 that Bhagwan Dass has been shown to be in possession. The revenue entries had not been challenged till the date of filing of the suit. The submission made by the counsel for the Petitioner to the effect that, since in an application made by Bhagwan Dass seeking redemption, he averred that the land in dispute is mortgaged with possession in favour of the Petitioner, the possession of the Petitioner is proved, does not carry us any further with respect to the physical possession of the Petitioner over the land in dispute. The contention raised by the counsel for the Petitioner is that the revenue entries are wrong. Even if the contention is taken at its face, the Petitioner has failed to show how he is in physical possession or was ever in physical possession of the land in dispute. I find no force in the contention to the effect that since the land in dispute was mortgaged with possession, it should be presumed that the Petitioner is in physical possession. Since nothing has been brought to my notice by which it can be reasonably inferred that the Petitioner is in possession of the land in dispute, no injunction can be granted in favour of the Petitioner.