Vijay Aggarwal And ORS. v. Rajnish Gupta And ORS.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of decision: April 24, 2023 Vijay Aggarwal and others ....Petitioners versus Rajnish Gupta and others ....Respondents
CORAM:
HON'BLE MR. JUSTICE ARUN MONGA Present:- Mr. Akshay Kumar Jindal, Advocate for petitioners. Mr. Pardeep Singh Poonia, Advocate, Mr. Pulkit Dhanda, Advocate, Mr. Gaurav Dhingra, Advocate for caveator-respondent No.1. ***** ARUN MONGA, J. (ORAL) Petition herein is for setting aside the impugned order dated 28.03.2023 (Annexure P-1) passed by learned Additional District Judge, Ambala whereby order dated 03.03.2023 (Annexure P-10) passed by learned Additional Civil Judge (Junior Division), Naraingarh, District Ambala was set aside and petitioners/defendants No.1 to 3were restrained from interfering or from raising construction over suit property alleged to be in possession of plaintiff/ respondent No.1. 2.
The revision petition is premised on the averments thatplaintiff/ respondent No.1 hereinfiled suit for mandatory injunction with the prayer that petitioners/defendants No.1 to 3 may be directed to remove encroachment/ construction raised by them over plot measuring 10 Marlas, being part of Khasra No.49//10 (8-0), situated in village Dera, H.B. No.190, Tehsil Narangarh, District Ambala. This portion was reflected as ABCD in the site plan. Further prayed to restrain defendants No.1 to 3/petitioners herein from interfering in peaceful possession of plaintiff.
2.1.
Along with the suit, plaintiff had also filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 (for -1-
short 'CPC') for grant of ad interim injunction restraining defendants No.1 to 3 from interfering in peaceful and lawful possession of plaintiff over land in question. Said application was dismissed by learned trial Court vide order dated 03.03.2023 (Annexure P-10).
2.2.
Aggrieved, plaintiff/respondent No.1 herein filed an appeal against aforesaid order, which was allowed by learned First Appellate Court vide impugned order dated 28.03.2023 (Annexure P-1).
3.
Learned counsel for petitioners would contend that no dimensions of land purchased by plaintiff has been mentioned in the sale deed dated 05.09.2005 to establish that plaintiff was delivered possession of some specific portion by his predecessor. Also contends that under the garb of injunction suit and ad interim application, plaintiff is trying to take possession of area under possession of petitioners/defendants No.1 to 3.
3.1.
Further contends that parties are co-sharers in Khasra No.49//10 and therefore, no injunction can be granted. He further contends that there is nothing pleaded in the plaint filed by plaintiff that construction raised by petitioners is on the portion of plaintiff. Suit is barred in view of provisions of Section 41(h) of the Specific Relief Act, 1963 since plaintiff has an equally efficacious remedy of filing suit for partition to get entire land partitioned. 3.2.
He would further contend that by passing impugned order dated 28.03.2023 (Annexure P-1), learned First Appellate Court has become functus officio and cannot entertain any such application of plaintiff. Petitioners are already in possession of suit property and raised construction over portion in their possession in joint land.
4.
On the other hand, learned counsel for caveator-respondent No.1/ plaintiff opposes the revision petition and submits that impugned order dated 28.03.2023 (Annexure P-1) passed by learned Additional District Judge, Ambala is a well-reasoned order and deserves no interference. -2-
5.
I have heard learned counsel for parties and gone through the record. 6.
Having heard rival contentions and after perusal of impugned order of the Appellate Court, I am of the view that in order to balance the equities, same warrants interference from this Court. More of it later. 6.1.
Before adverting further, it would be apposite to reproduce learned trial Court's order dated 03.03.2023 (Annexure P-10), set aside by learned First Appellate Court, which is as below:-
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Having perused aforesaid, I am of the view that learned trial Court rightly declined injunction for the reasons already stated in the order above. I am unable to persuade myself that distinction drawn by learned Appellate Court in bringing legal fiction that when any khasra number of the land which is earlier agricultural in nature, comes in Abadi-deh, then it looses its identity of agricultural land and law of agricultural land does not apply in the said case where a colony has been set up. The conceded position herein is that none of the parties has resorted to any partition proceedings and claim of possession qua respective portion is merely based on self-proclamation of predecessor-in-interest, who were co-sharers and vendors, who sold their respective portions to plaintiff as well as petitioners/defendants No.1 to 3.
While on one hand, plaintiff-respondent No.1 claims that he has been in possession of area depicted as ABCD on the site plan appended with the plaint and petitioners-defendants No.1 to 3 had purchased the area CDEF adjoining to it and under the garb of carrying out construction at CDEF, they have encroached ABCD. The defence of petitioners herein is that apart from 10 Marlas of suit land purchased by them, they are also owners of additional 15 Marlas of land and construction beyond 10 Marlas in CDEF is being carried out in the balance of 15 Marlas. They neither have any intention to encroach ABCD nor are they exceeding their construction beyond area of 25 Marlas owned by them. 8.
Be that as it may, as already observed hereinabove, I am in agreement with the reasons recorded by learned trial Court for declining injunction. Therefore, learned Appellate Court's order dated 28.03.2023 (Annexure P-1) is set aside. However, learned trial Court order dated 03.03.2023 (Annexure P-10) is modified to the extent that in case, eventually, it is found out upon the outcome of suit by learned trial Court that area marked by letters 'ABCD' indeed was throughout in possession of -5-
plaintiff and he is owner of the same, subject of-course to the partition proceedings to be instituted by either of the parties, then petitioners shall have to raze the construction to ground level at their own peril, if it is found that it is in portion 'ABCD'. However, petitioners shall not claim any damages and/or any special equity on the ground that they had raised construction on a bona fide belief that they would get the said area in their possession, in case, plaintiff or defendants No.1 to 3 institute(s) partition proceedings subsequently. 9.
With these observations, instant revision petition stands disposed of. 10.
Pending application(s), if any, shall also stand disposed of. (ARUN MONGA) JUDGE April 24, 2023 mahavir Whether speaking/reasoned:
Yes/No Whether reportable:
Yes/No -6-