Manohar Singh vs Ram Chander
1997 Latest Caselaw 645 Del

JUDGMENT

S.N. Kapoor, J.

(1) This revision is directed against an impugned order dated 19th April 1994 allowing an appeal and dismissing the application under Order 39 Rules 1 and 2 and reversing the order dated 23rd May 1992 restraining the defendants Ram Chander and others and their agents from dispossessing the plaintiff forcibly from the suit land.

(2) According to the case of the plaintiff/petitioners, 17 biswas land in khasra in actual physical possession of Budha s/o in actual physical possession of Budha s/o Shravan. He expired leaving behind his tow sons Ram Phal and Prem Chand. His two sons also expired leaving behind Panna Devi and Dewan Kaur. They purchased this land from the legal heirs of Budha, i.e. his the behest of the daughters-in-law of Budha on the behest of the daughters-in-law of Budha on Agreement to Sell. They both executed Power of Attorney dated 28th March 1990 but the plaintiffs claim that they are in possession and occupation since 1989. The possession had been duly recorded on 31st March 1992 when the plaintiffs/petitioners started raising a boundary wall around the suit land. On 4th April 1992, defendants/respondents along with their associates came at the suit land and threatened the plaintiffs to dispossess them from the suit land and even defendants also caused obstructions/hindrance in the construction of boundary wall around the suit land. The plaintiffs alleged that the defendants have no legal right, title or interest in the suit land and as such police report was lodged in the Ps Anand vihar. Since the threats given by defendants and their agents are still continuing, this suit for permanent injunction along with this application was filed.

(3) The defendants/respondents contested the suit as well as the application by raising a number of preliminary objections, inter alia, on the ground that the plaintiffs have no locus standi to file the suit for they are neither in possession or have any legal right in the suit property.Defendants claim to be in possession for the last more than 50 years, since the time of their predecessor-in-interest Ram Sahai. The suit was barred under Section 41 of the Specific Relief Act. It was neither properly valued for the purpose of court fee nor for the purpose of jurisdiction. The plaintiffs/petitioners have not approached the court with clean hands. The recorded owner of this property Mandir Sitaram has not been imp leaded as a necessary party. They denied the delegation of title and possession of the plaintiffs.

(4) The learned Trial Court relying on (a) the face value of the khasra girdavari for the year 1991-92 showing the plaintiff in possession while Budha s/o Shravan; (b) photographs of the suit land and photo copies of the police report lodged at Ps Anand Vihar; and (c) that Ram Sahai had no legal right in the suit land and was in possession on behalf of Budha, the cultivator, took the view that the plaintiffs/petitioners were in actual physical possession of the land and as such granted stay as prayed by the plaintiffs/petitioners restraining the defendants and their agents either from dispossessing the plaintiffs forcibly from the suit land as mentioned above or causing any interference/obstruction in the raising of boundary

(5) Wall around the suit land by the plaintiffs till the disposal of the suit. On appeal by the impugned order, the said order was reversed.

(6) Feeling aggrieved by the impugned order, the present revision petition has been filed.

(7) I have heard the parties counsel and gone through the record.

(8) Having heard the parties counsel, it appears that both the parties are trying to rely on the weakness of each other and not on their own case.

(9) The case of the petitioner rests on the actual physical possession of Khasra No. 2668/555 belonging to the temple of Sita Ramji allegedly taken during the pendency of a suit between the Trust managing the Temple Sita Ram Bhandar and the respondent. The claim of the plaintiff is that Budha expired, his sons Ram Phal and Prem Chand also expired. Widows of Ram Phal and Prem Chand sold their rights by executing a General Power of Attorney. The land has been demarcated at the site at the behest of these widows on 31st October 1989. Had the widows been not in possession, such a demarcation could not have taken place. The plaintiffs claim to have purchased the land and an agreement to sell and the General Power of Attorney from these two widows on 28th March 1990. However, the plaintiff claimed to be in possession since 1989. However, there is no dispute over one aspect that even in document filed by the counsel for the petitioner, Budha was shown as cultivator through Ram Sahai on 24th October 1991 and 25th March 1992 measuring 17 biswas. It also indicated that the names of the petitioners Mohar Singh and Gaje Singh was recorded in these khasras on 24th October 1992 but it was struck off. The same is true in respect of 24th October 1991. The suit was filed on 16th April 1992. The sons of Ram Sahai have also filed a suit but in view of the suit of the plaintiff/petitioner, the suit of the respondents was ordered to be stayed. There is yet another admitted fact that Sita Ram Bhandar Trust filed a suit for recovery of possession against the defendant/respondent and the same was pending even in the year 1989. Thus, when the plaintiff claimed to have taken possession, the suit was pending admitting that the respondent was in possession and earlier their predecessor-in-interest Ram Sahai was in physical possession. It appears that the plaintiffs got their names inserted in the khasra girdavari without there being any proper proceedings for mutation in their favour and probably that is the reason, that the names of the petitioners were struck off. Even the copies filed by the plaintiff/petitioner do not indicate any order passed by any authority to insert the name of Mehar Singh and Gaje Singh. Sita Ram Bhandar Trust sought to implead Gaje Singh and Mohar Singh also. But the circumstances and reasons stated by the learned Sr. Sub Judge are such that virtually rule out the possibility of the plaintiff/petitioner being in possession specially in view of the fact that on the basis of the document itself it is established that the daughters-in-law of Budha were not in de facto possession of the land of the suit. The learned Sr. Sub Judge appears to be absolutely justified in taking the view that by taking these photographs and by throwing bricks on the land in suit, one cannot claim possession, forcible temporary entry is totally a different thing. Legal possession could not be passed on to the plaintiff/petitioner in view of the pending suit and admitted situation in the suit filed by the owner of the land. In such circumstances, the reliance placed by the defendant/respondents on Salwan Educational Trust Vs., Rlr 1986 (22) and Narain Singh Vs. Mahinder Singh 1992 Rlr 52 appears to be justified.

(10) Supposing for the sake of argument, it is accepted that the two views are possible, even then this court is not supposed to substitute its own views in a civil revision petition in the case in hand. Accordingly, I feel that this revision petition has got no force and it is dismissed. 11. However, in the peculiar facts and circumstances of this case, both the parties are left to bear their own costs.