Punjab-Haryana High Court
Bhag Singh vs Kulwant Singh on 24 April, 2024
Neutral Citation No:=2024:PHHC:055874
CR-2478-2024 (O&M) -1- 2024:PHHC:055874
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
131 CR-2478-2024 (O&M)
Date of decision:24.04.2024
Bhag Singh ... Petitioner
Vs.
Kulwant Singh ... Respondent
CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR.
Present: Mr. Ankur Bali, Advocate for the petitioner.
...
SUKHVINDER KAUR, J.
1. Instant revision petition has been filed by the
petitioner/plaintiff for grant of stay of the operation of judgment and decree
dated 28.03.2024 (Annexure P-1) passed by the Civil Judge (Jr. Division),
Chandigarh, already challenged by way of first appeal which is pending
before the Appellate Court, Chandigarh for 25.04.2024 along with an
application for grant of stay under Order 41 Rule 5 CPC read with Section
151 CPC with a further prayer to direct the Appellate Court, Chandigarh to
decide his stay application in a time bound manner.
2. The relevant facts for adjudication of the present revision
petition are that the petitioner/plaintiff filed a civil suit No.1700 of 2014
titled as 'Bhag Singh Vs. Kulwant Singh' seeking declaration to the effect
that the petitioner is the absolute owner in possession of land measuring
0-5 marlas of total land, bearing khasra No.418, Khewat No.302,
Khatauni No.316, Hadbast No.222 as well as open site measuring 68 feet
x 15 feet falling within Abadi Deh of Village Burail, Chandigarh on the
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basis of sale deed executed by Jai Singh registered on 02.06.1986 and for
mandatory injunction for directing the respondent to demolish the
encroachment/boundary wall constructed upon the land in question and
grant of permanent injunction for restraining the respondent from raising
construction/encroachment upon the aforesaid land. Thereafter,
respondent - Kulwant Singh also filed a civil suit bearing Civil Suit
No.550 of 2015 titled as 'Kulwant Singh Vs. Bhag Singh' seeking relief of
declaration to the effect that the sale deed dated 28.05.1996 which was
registered before the Sub Registrar, Chandigarh on 02.06.1986 pertaining
to the aforesaid 5 marlas of land is null and void along with mandatory
injunction and for grant of permanent injunction. Both the aforesaid suits
were consolidated and decided vide a common judgment dated
28.03.2024 by the Civil Judge (Jr. Division), Chandigarh and were partly
decreed and it was also held that sale deed be treated for sale of land
measuring 0-5 marlas of total land described as bearing Khasra No.418,
Khewat No.302, Khatauni No.316, Hadbast No.222 and the petitioner was
held entitled to the relief of declaration to the effect that sale deed dated
02.06.1986 executed and registered qua land bearing khasra No.418,
Khewat No.302, Khatauni No.316, Hadbast No.222 to be a legal and valid
document and it was further held that on the basis of the sale deed
executed by Jai Singh registered on 02.06.1986 in the office of Sub
Registrar, Chandigarh, the petitioner has become the absolute owner of
the aforesaid land and decree of declaration was partly passed in favour of
the petitioner qua the aforesaid land. But the petitioner was not held
entitled to get the decree for declaration of ownership to the effect that he
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is owner of open site measuring 68 feet x 13 feet within the abadi deh of
Village Burail, U.T., Chandigarh, as the vendor was not the owner of the
open area. The relief of mandatory injunction as well permanent
injunction in respect of open site measuring 68 feet x 13 feet within the
abadi deh of Village Burail, Chandigarh was also declined. The petitioner
filed an appeal against the aforesaid judgment and decree dated
28.03.2024 before the District Judge, Chandigarh on 15.04.2024. Along
with the appeal, an application under Order 41 Rule 5 CPC read with
Section 151 CPC for stay of the operation of the judgment and decree
dated 28.03.2024 was also filed alleging that if operation of the judgment
and decree dated 28.03.2024 was not stayed, then the first appeal filed by
the petitioner would be rendered infructuous as the respondent had
already started construction over the disputed portion of land.
3. The matter was taken up by the Appellate Court on
16.04.2024. The respondent had filed a caveat petition and had appeared
through his counsel on the aforesaid date and sought time for filing reply
to the stay application which was allowed and the matter was posted for
22.04.2024 for filing reply to the stay application as well as for arguments
and scrutiny thereof. On 22.04.2024, the said appeal along with stay
application was simply adjourned for 25.04.2024. In the meanwhile, the
respondent is raising construction on the disputed open site. Hence,
aggrieved against the same, the revision petitioner/plaintiff has knocked the
doors of this Court by way of filing of the present revision petition.
4. Learned counsel for the petitioner has contended that despite the
specific averments made in the stay application pending before the Appellate
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Court that the respondent was carrying out the construction over the
disputed open site, the Appellate Court has not passed any effective order
and did not take notice of the fact that if respondent would raise construction
on the said open site, then the appeal would be rendered infructuous. While
relying upon the decision of the Apex Court in Mool Chand Yadav &
another Vs. Raza Buland Sugar Company Ltd, Rampur & others, 1982
(3) SCC 484, and Ashwani Kumar Bindra Vs. Satish Kumar & another,
2018 (2) Law Herald 1253, the learned counsel has argued that during
pendency of the appeal, the operation of an order having serious
consequences, must be suspended and that it is not proper exercise of
jurisdiction to entertain appeal or keep the appellant on tenterhooks by
failing to pass an order immediately on the application traceable to power
under Order 41 Rule 5 CPC.
5. During the course of the arguments, learned counsel for the
petitioner has submitted that he would be satisfied if the Appellate Court is
directed to decide the application filed by the petitioner under Order 41 Rule
5 CPC pending before it within a time bound manner.
6. I have heard learned counsel for the petitioner and have perused
the record.
7. Keeping in view the above, the present revision petition is
disposed of with a direction to the Appellate Court, Chandigarh to decide the
stay application filed by the petitioner under Order 41 Rule 5 CPC
expeditiously as per law preferably within a period of one month from the
date of receipt of copy of this order.
8. However, till the disposal of the stay application by the
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Appellate Court, status quo regarding construction on the disputed site shall
be maintained.
9. Disposed of in the aforesaid terms.
10. All pending applications, if any, also stand disposed of
accordingly.
( SUKHVINDER KAUR )
JUDGE
24.04.2024
harjeet
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No
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