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Baljit Singh & Anr. v. Satnam Singh & Ors. - CR-5040-2005  RD-P&H 2734 (1 May 2006)
Civil Revision No.5040 of 2005
Date of decision: May 02, 2006.
Baljit Singh & Anr.
Satnam Singh & Ors.
Present: Shri Pawan Kumar, Advocate for the petitioners.
Shri A.K. Kalsy, Advocate for respondents No.1 to 4.
Surya Kant, J. (Oral)
This revision petition under Article 227 of the Constitution of India has been filed by the defendant against whom an application under Order 39 Rule 1 and 2 CPC for the grant of ad-interim injunction was dismissed by the trial court but has been allowed by the first appellate court thereby restraining him from raising further construction and/or to change the nature of the suit land which is stated to be jointly owned by the parties along with other co-sharers.
As per the petitioner's case, he purchased 5 bighas, 3 biswas and 5 biswansis of land from Smt. Piar Kaur, comprised in khasra No.421, Khata No.59, Khatauni No.147, 153, 156 and 158 situated in the revenue estate of village Ratolan, Tehsil Malerkotla. According to the petitioner, earlier the vendor Smt. Piar Kaur had been and now he is in exclusive possession of the aforesaid khasra number. It is also contended that in January, 2005 Satnam Singh (minor) respondent No.1 is alleged to have purchased a piece of land from his father through a sham transaction and thereafter filed the suit for injunction in February, 2005 on the plea that he is a co-sharer.
Learned trial court dismissed the application under Order 39 Rule 1 and 2 CPC primarily on the ground that as per the report of the local commissioner, the petitioner has been found in exclusive possession of the piece of the land which he purchased from Smt. Piar Kaur. Without disturbing that finding of fact, the learned first appellate court, however, has restrained the petitioner from raising further construction over the said piece of land on the ground that the land in question is in 'joint khata' in relation to which the partition proceedings are already pending, therefore, the petitioner cannot be permitted to change the nature of the suit land till the partition takes place.
Relying upon two judgments of this Court, namely, Maman Chand v. Smt. Kamla, 1996(2) PLR 147; and (ii) Tarsem Singh v.
Parkash Kaur, 2002(1) CCC 659, Learned Counsel for the petitioners contends that no injunction can be granted against a co-sharer and the construction, if any, raised by the petitioner shall be subject to partition. On the other hand, Learned Counsel for the respondents has placed reliance upon a judgment of this Court in Balbir Singh v. Lamber Singh, 2004(3) CCC 129 and a judgment by the Supreme Court in Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass, 2005(1) CCC 430.
In Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass (supra), the Supreme Court held that mere an undertaking given by a party that the construction to be raised by it shall be subject to the outcome of the pending proceedings and that the same shall be permitted at its risk and cost, is no ground to permit that party to continue with the construction. It was further held that unless a case of irreparable loss or damage is made out by a party to the suit, the injunction to restrain from raising further construction in such like matters should not be declined. In Balbir Singh v. Lamber Singh (supra), this Court in the case of a co-sharer observed that having regard to the demand of equity, the property should be preserved in the present state, therefore, the status quo till the partition takes place should be maintained.
Be that as it may, the fact remains that the land which is in 'joint khata' has not yet been partitioned though partition proceedings are going on. It is informed by Learned Counsel for the respondents that the mode of partition has already been finalised though one of the co-sharer has filed an appeal against the same which is pending before the Commissioner, Patiala Division. However, Learned Counsel for the petitioner points out that no interim stay has been granted in that appeal.
Having regard to the above noticed stage of the partition proceedings pending between the parties, this petition is disposed of with the following directions:-
(i) The Commissioner, Patiala Division, Patiala is directed to dispose of the pending appeal within two months from the date of production of a certified copy of this order; (ii) any attempt made by any co-sharer to delay the pending appeal shall be viewed seriously by the learned Commissioner and no adjournment shall be granted without imposing heavy and exemplary costs;
(iii) After the decision of the appeal by the above stated appellate authority, the mode of partition, so finalised by it shall be given effect to immediately and the co-sharers shall be put into physical possession of their respective shares as per the said mode of partition. This exercise shall be completed within one month from the date of decision by the learned Commissioner. It shall thereafter be open to raise any construction over the partitioned share; (iv) It has been pointed out that some other co-sharers have already raised constructions over some parts of the joint land. Though, such co-sharers are not party before this Court, therefore, no observations adverse to their rights may be construed out of this order. However, law is well settled that such like constructions, if any, shall be at their own risk and shall abide by the mode of partition. The parties who have raised these constructions shall not claim damages and/or preferential allotments of the share merely on the basis of these alleged constructions;
(v) in case the appeal is not decided within two months, the petitioner herein shall be entitled to seek implementation/execution of the mode of partition finalised by the Collector subject to, however, final outcome of the appeal.
May 02, 2006. [ Surya Kant ]
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