Punjab-Haryana High Court
Satpal Aggarwal vs Kuldeep Goyal And Anr on 25 April, 2024
Neutral Citation No:=2024:PHHC:056875
CR-1816-2024 (O&M) -1- 2024:PHHC:056875
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
126 CR-1816-2024 (O&M)
Date of decision:25.04.2024
Satpal Aggarwal ... Petitioner
Vs.
Kuldeep Goyal & another ... Respondents
CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR.
Present: Mr. Gaurav Datta, Advocate for the petitioner.
Mr. Pankaj Gupta, Advocate and
Mr. Paras Jain, Advocate for respondents No.1 & 2.
...
SUKHVINDER KAUR, J.
1. The instant revision petition has been filed against the order dated 18.01.2024 (Annexure P-13) passed by the Civil Judge (Jr. Division), Derabassi and order dated 12.03.2024 (Annexure P-15) passed by the Additional District Judge, SAS Nagar, Mohali, whereby application under Order 39 Rules 1 & 2 CPC filed by the petitioner/plaintiff was dismissed.
2. The relevant facts for disposal of the present revision petition are that the revision petitioner/plaintiff filed a Civil Suit bearing No.827 of 2022 before the trial Court seeking permanent injunction for restraining the defendants from interfering or trespassing in the peaceful possession of the plaintiff over the land measuring 11 biswas 12 biswasi as detailed in the head note of the plaint total land measuring 21 bighas 18 biswas being 232/8760 share which comes to 580 sq. yards and further for restraining the defendants from forcibly, illegally and unlawfully dispossessing the plaintiff from the suit property.
3. As per case of the plaintiff, the plaintiff had purchased land 1 of 6 ::: Downloaded on - 04-05-2024 04:33:50 ::: Neutral Citation No:=2024:PHHC:056875 CR-1816-2024 (O&M) -2- 2024:PHHC:056875 measuring 11 biswas 12 biswasi vide registered sale deed bearing Vasika No.3456 dated 05.09.2003 registered with the office of Sub Registrar, Derabassi. The possession was given in khasra Nos.167, 168 and 172. Plaintiff had given Power of Attorney to Sanjeev Kumar S/o Mohan Lal and executed two sale deeds bearing Nos.11051 dated 17.01.2006 and 11052 dated 17.01.2006 for 250 sq. yards and 200 sq. yards respectively. Possession of 130 sq. yards remained with the plaintiff. Sanjeev Kumar did not make payment of even a single penny to the plaintiff. So he challenged the sale deeds with alternate relief of recovery. The said suit was decreed and Sanjeev Kumar was directed to pay the amount of Rs.4,50,000/- along with interest. The property in question was attached in the execution filed by the petitioner. It has been further alleged that in the said suit that demarcation of the property was also conducted by the revenue officials and specific possession of 580 sq. yards was given to the plaintiff. Sale of the property was conducted on 26.06.2019 as per order passed by the Court and the same was confirmed by the Court on 26.08.2019. Sale certificate was also issued qua the property in question on 02.03.2022. It was alleged that the possession of the property in question always remained with the plaintiff since 26.08.2019 and plaintiff is owner in possession over the property in question and defendants have no concern with the same and they are liable to be restrained from interfering into the peaceful possession of the plaintiff forcibly and from dispossessing him from the suit property illegally. Hence the present suit was filed by the petitioner/plaintiff.
4. Notice of the suit was issued to the defendants, who filed their written statement alleging that land measuriung 16 biswas 6 biswasi as 2 of 6 ::: Downloaded on - 04-05-2024 04:33:51 ::: Neutral Citation No:=2024:PHHC:056875 CR-1816-2024 (O&M) -3- 2024:PHHC:056875 detailed in para no.2 of the written statement out of land measuing 21 bigha 18 biswas being 326/8760 share, had been purchased by defedant No.1 - Vijay Kumar on the basis of regular sale deed bearing Vasika No.8504 dated 09.01.2015 got executed in their favour by IDBI bank through its concerned Manager. As per said sale deed, possession was also delivered to them. Lateron, Vijay Kumar sold land measuring 5 biswas 19 biswasi i.e. 297 sq. yards out of the said land measuring 16 biswas 6 biswasi to defendant No.2 - Pawan Kumar vide regular sale deed bearing Vasika No.4822 dated 17.02.2017 and one General Power of Attorney was also executed by Vijay Kumar in favour of defendant No.2 with regard to his remaining land measuring 2 biswas 4 biswasi i.e. 110 sq. yards and as such defendants are in effective possession of land measuring 815 sq. yards i.e. land measuring 16 biswas 6 biswasi and no such property measuring 580 sq. yards is existing at the spot as allegedly claimed by the plaintiff. No possession of any specific land was delivered to the plaintiff in the execution proceedings and the sale certificate issued to the plaintiff was only regarding sale of share.
5. Along with the present suit, the plaintiff also filed an application under Order 39 Rules 1 & 2 CPC. Vide the impugned order dated 18.01.2024, the Civil Judge (Jr. Division), Derabassi dismissed the stay application of the petitioner. Thereafter petitioner filed an appeal against the said order dated 18.01.2024 before the Additional District Judge, SAS Nagar, Mohali which was also dismissed vide order dated 12.03.2024. Hence, the revision petitioner has knocked the doors of this Court by way of filing of the present revision petition.
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Neutral Citation No:=2024:PHHC:056875
CR-1816-2024 (O&M) -4- 2024:PHHC:056875
6. Learned counsel for the petitioner has contended that the Courts below have totally ignored the fact that the petitioner is claiming the land measuring 580 sq. yards which was already demarcated vide demarcation report dated 25.07.2019, whereas the respondents are merely vendees from a mortgagee bank and no demarcation report exists in their favour. He has further contended that the petitioner has been put into possession in pursuance to the Court orders and possession of specific area had been delivered to the plaintiff by the public servant at the spot. To support his contentions, learned counsel for the petitioner has relied upon the decision of the Apex Court in Ramdas Vs. Sitabai & others, (2009) 7 SCC 444 and a decision of this Court rendered in CR-7819-2010 in Ram Murti & others Vs. Prem Kumar & others decided on 06.12.2010.
7. I have heard learned counsel for the petitioner at length and have perused the records thoroughly.
8. Perusal of the sale deed dated 05.09.2003 reveals that Arjan Singh had sold 580 sq. yards of land i.e. 232/8760 share out of total land measuring 21 bigha 18 biswas. The plaintiff also produced on record a copy of sale deed dated 17.01.2006 executed by Sanjeev Kumar in favour of Mohan Manocha and Sudhir Manocha qua 4 biswas 0 biswasi of land measuring 200 sq. yards, copy of sale deed dated 17.01.2006 vide whcih Sanjeev Kumar being Power of Attorney holder of the plaintiff had sold 5 biswas of land measuring 250 sq. yards to Mohan Manocha Sudhir Manocha, sale certificate dated 02.03.2022 of land measruing 450 sq. yards being 180/8760 share of the suit land in execution of judgment and decree dated 13.05.2014 show that the plaintiff had originally purchased a share 4 of 6 ::: Downloaded on - 04-05-2024 04:33:51 ::: Neutral Citation No:=2024:PHHC:056875 CR-1816-2024 (O&M) -5- 2024:PHHC:056875 only from his vendor Arjan Singh and thereafter out of his said share i.e. 232/8760 some share i.e. 180/8760 share of the suit land was sold by him through his Power of Attorney holder and the same share was purchased by him in the execution proceedings. The sale certificate dated 02.03.2022 pertains only to 450 sq. yards being 180/8760 share of the suit land and no specific possession was delivered to the plaintiff.
9. As per sale deed dated 11.07.2023 Arjan Singh had sold 16 biswas and 6 biswasi land measruing 815 sq. yards being 326/8760 share out of total land measuring 21 bigha 18 biswas to Abdula Abdur Rehman Fazal bearing same khasra numbers as the suit property. This share was purchased by defendants from the IDBI Bank. So, they also got share of land measuring 21 bigha 18 biswas.
10. It has been rightly observed by the Courts below that there is nothing on record to show the execlusive possession of either of the parties and they are co-sharers in the suit property. It is trite law that a co-sharer can transfer his undivided share but the possession qua particular part of the proeprty cannot be handed over to the vendees unless the property is partitioned and vendee shall be entitled to possession only through the partition. Even if a specific co-sharer sells a specific portion of a joint estate it is considered as sale of share.
11. So far as the demarcation report as alleged by counsel for the revision petitioner is concerned, regarding that the specific reference to order dated 06.05.2019 of the Executing Court has been made in the impugned order. Order dated 06.05.2019 of the Executing Court has been reproduced in the impugned order, perusal of which reveals that the Executing Court has 5 of 6 ::: Downloaded on - 04-05-2024 04:33:51 ::: Neutral Citation No:=2024:PHHC:056875 CR-1816-2024 (O&M) -6- 2024:PHHC:056875 held that the demarcation report had been received, but execution cannot be a substitute for a suit for partition particularly when other co-sharers are not party in the suit. So it has been held by the Executing Court that it was sale only qua the share of JD and only symbolic posession would be given to the person who would suceed in auction. So it has been rightly observed in the impugned order of first Appellate Court that revenue authorities vide report dated 06.05.2019 had delivered the possession of the specific plot to the plaintiff going against the order of the Executing Court and rather order of the Executing Court shows that only symbolic possession was given to the plaintiff in the execution. It has also been rightly observed that the photographs placed on record by the plaintiff are of open land whereby fencing of some barbed wire had been done and these photographs do not prove the possession of the plaintiff over the said plot. The case law cited by learned counsel for the petitioner is of no help to him, when exclusive physical possession of plaintiff over the suit land has been proved.
12. In the light of the above, the impugned orders are well reasoned orders and do not suffer from any illegality or perversity.
13. Dismissed.
14. However, nothing said herein above shall be construed to be an expression of opinion on the merits of the case.
( SUKHVINDER KAUR ) JUDGE 25.04.2024 harjeet
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No 6 of 6 ::: Downloaded on - 04-05-2024 04:33:51 :::