BHAGAT CHAND Vs. THELU

JUDGEMENT

(1.) This revision petition under Section 115 of the Code of Civil Procedure (hereafter referred to as the 'Code") is directed against the order dated 16/6/1999 passed by the learned Additional District Judge, Mandi in CMA No. 11/1999 whereby the order dated 24/2/1999 passed by the learned Sub-Judge (3), Mandi in CMA No. 201-VI/98 restraining the respondents/defendants (hereafter referred to as the 'defendants') from interfering with the possession of the petitioner/plaintiff (hereafter referred to as the 'plaintiff) on land comprising Khasra No. 69 (now split into Nos. 702/69 and 703/69) measuring 3/7/1 Bighas, situate in Mauja Jhiri, Sub-Tehsil Aut, District Mandi (hereafter referred to as the 'suit land'), till the disposal of a civil suit between the parties pending before the said Court, has been reversed and thereby application of the plaintiff under Order 39 Rules 1 and 2 of the Code has been dismissed.

(2.) The facts material and relevant for the disposal of this petition are that the plaintiff instituted a suit against the defendants for declaration and permanent injunction averring that he purchased the suit land from one Sidhu who was exclusive owner in possession thereof vide registered sale deed dated 10-4-1973 and developed it by raising an almond orchard thereon. On 12-11-1998 the defendants threatened to occupy the suit land and the plaintiffs request to the contrary did not yield any positive result. The plaintiff then examined the revenue records and found that in his absence and without notice, the suit land had been partitioned and Khasra No. 702/ 69 measuring 2-1-19 Bighas has been allotted to him whereas Khasra No. 703/69 measuring 1-5-4 Bighas has been allotted to the defendants. It is further claimed that the said partition is collusive, illegal and inoperative and the defendants have no right, title or interest to interfere with the settled possession of the plaintiff. Hence the suit. It was along with the plaint that an application under Order 39 Rules 1 and 2 of the Code was also moved by the plaintiff for restraining the defendants from interferring with his possession over the suit land.

(3.) The defendants filed written statement and contested the claim of the plaintiff on various legal grounds regarding maintainability, want of cause of action and locus standi, limitation, estoppel and jurisdiction. On merits it is claimed that the plaintiff purchased only share of Sidhu in the land which was subsequently partitioned amongst the co-sharers and the mutation of partition was attested on 25-3- 1987 and the parties are in possession of their respective allotted shares. It has been denied that the plaintiff had no knowledge of the partition. Application under Order 39 Rules 1 and 2 of the Code was also contested on the same grounds.