Madan Lal And Ors vs M/S Emaar Mgf Land Ltd And Ors
2022 Latest Caselaw 2355 P&H

268    IN THE HIGH COURT OF PUNJAB AND HARYANA
                  AT CHANDIGARH


                                     CR-1528-2021 (O&M)
                                     Date of decision: 31.03.2022


Madan Lal and others                                    ...........Appellants

                                 versus



M/s Emaar MGF Land Ltd. And others                       .......Respondents



CORAM: HON'BLE MR. JUSTICE FATEH DEEP SINGH

Present: Mr. Sandeep Yadav, Advocate
         for the petitioner.

           Ms. Sehaj Sandhawalia, Advocate
           for respondents No.1 to 18.


FATEH DEEP SINGH, J.

CM-2219-CII-2022

In view of the averments made in the application and in

the interest of justice, the same is allowed. Documents annexed

therewith are taken on record subject to all just exceptions.

CM stands disposed off.

CR-1528-2021

A civil suit for permanent injunction was filed by the

then plaintiffs in all numbering 08, the present petitioners against

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the then defendants M/s Emaar MGF Land Limited-respondents

before this Court and which matter at the relevant time was

pending before the Court of learned Civil Judge, Gurugram,

Haryana. While, disposing off an application under Order 39

Rules 1 and 2 read with Section 151 CPC of the plaintiffs, the

Court of the learned Civil Judge (Junior Division), Gurugram vide

order dated 07.02.2018 allowed the application directing the

parties to maintain status quo qua construction and possession of

the suit land during the pendency of the suit.

The order was challenged by the then defendants-M/s

Emaar MGF Land Limited (in short 'the Company') by way of

civil miscellaneous appeal wherein the Court of the learned

Additional District Judge, Gurugram vide impugned findings dated

13.03.2020 allowed the appeal and set aside the orders of the Court

below. It is against this finding, the present civil revision has come

about.

Heard counsel for the parties and perused the records. As is admitted before this Court in the submissions of

the two sides which is well elicited form the records of the case,

the plaintiffs/petitioners happen to be the owners of the land in

question in respect of which, they had entered into an agreement to

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sell to the Company. It is also there undisplaced that the property

in question is a joint co-sharer undivided property of the plaintiffs'

family. The sale agreement is primarily for the purposes of

facilitating construction by the Company for

commercial/residential buildings. Since, the agreement to sell have

been entered into between the parties, whereby, substantial amount

had been received by the sellers and possession was handed over to

the Company of specific portion of the land and, therefore, in view

of the well enshrined principle of law, the Company is deemed to

be co-sharer of the property so subject matter of sale transaction.

A suit for permanent injunction is purely a discretionary relief

based on sound principles of law based on equity and cannot be

allowed to be misused to suit the purpose of one of the litigants. It

is a matter of common knowledge that properties around Gurugram

have seen astronomical rise in their market value and the plaintiffs

appears to have fallen prey to mint money and in the process of the

same, after getting money have handed over the possession. It is

also not displaced that the Company had purchased part of the joint

property from one of the brothers and, therefore, is deem to have

stepped into his shoes and become a co-sharer entitled to protect

their possession and putting the property to their use. The claim of

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counsel for the petitioners that the Company is not in possession of

the same, cannot be gathered from anything placed before the

Court on record. Right title if any of the plaintiff/petitioners is

determinable only upon partition and which is yet to be

undertaken. The counsel for the Company had led much

arguments on the claim that the Company is only trying to raise

wall to protect the property and which cannot be termed to be a

construction by any means. Moreover, the suit property is part of a

larger area owned by different brothers after inheritance from their

father and that the Company is purchaser from one of the co-

sharers and it is not a case where the plaintiffs/petitioners claimed

that they are in exclusive possession of the property in question to

the exclusion of other co-sharers and, therefore, all the co-sharers

including the Company are deemed to be in possession of the

shares and there is no element of ouster brought to the notice of

this Court by the petitioners' counsel. Reliance is sought to be

placed on the judgment titled as 'T. Ramalingeswara Rao (Dead)

Through LRs and another versus N. Madhava Rao and others'

2019 (2) RCR (Civil) 770 which has further drawn analogy from

the Full Bench view of this Court laid down in 'Bhartu versus

Ram Sarup' 1981 PLJ 204 and in a similar view in a judgment

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titled as 'Om Parkash versus Rohtash and another' 2020 (1) RCR

(Civil) 124, a Single Bench of this Court has held that a mere

raising of construction on joint property by one of the co-sharers

cannot be termed to be an act of ouster of other co-sharers. The

Court below had detailed at length in the impugned findings and it

could not be pointed out by the petitioners' side how there has

been illegality and perversity in these findings which needs to be

upheld.

The revision being hopelessly without merits stands

dismissed.

                                             (FATEH DEEP SINGH)
31.03.2022                                        JUDGE
Neha




             Whether speaking/reasoned             :      Yes/No

             Whether reportable                    :      Yes/No




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