***

ARVIND SINGH SANGWAN, J. –

1. Prayer in this civil revision petition is for setting aside the order dated 21.11.2019 passed by the Civil Judge, whereby the application filed under Order 39 Rules 1 & 2 CPC, in a suit filed by the petitioner/plaintiff, praying for a decree of mandatory and permanent injunction qua the suit property, was dismissed as well as the order dated 14.02.2020 passed by the lower appellate Court, vide which appeal filed by the petitioner/plaintiff, challenging the aforesaid order of the Civil Court, was also dismissed.

2. The operative part of the order dated 21.11.2019 passed by the Civil Judge reads as under: -

“...I have heard the learned counsels for both the parties and have gone through the contents of documents on record carefully.

The plaintiff has requested to be granted an interim injunction claiming to be exclusive owner in possession of the suit property along with the performa defendant. Here, a reference must be made to sale deed bearing vasika No.1005 dated 13.10.2017 and 1253 dated 27.05.2016 vide which, the plaintiff, performa defendant had purchased the suit property. A bare reading of both the sale deeds shows that the plaintiff, performa defendant were sold only a share in the suit property. No specific portion of the suit property was ever sold to them. Mutations bearing No.864 dated 21.02.2018, 830 dated 13.07.2016 and 863 dated 21.02.2018 have also been perused which clearly show that only the share of the vendor had been sold to the plaintiff and performa defendant. Thus, it is clear that the plaintiff and performa defendant are not in exclusive possession over any portion of the suit property and have failed to make out a prima facie case in their favour.

It stands well established that in order to be granted the relief of interim injunction, it is incumbent upon the applicant to establish the following essentials:-

(a)           prima facie case,

(b)           balance of convenience,

(c)           irreparable loss

As the prima facie case has not been made out, the other two ingredients need not be gone into. Hence, the application for the grant of interim injunction filed on behalf of the plaintiff is hereby dismissed. It is clarified that nothing mentioned herein shall be deemed to be the opinion of this Court on the merits of the case.”

3. The operative part of the order dated 14.02.2020 passed by the lower appellate Court reads as under: -

“...As per the pleadings of the parties, the appellant along with the performa respondents had claimed themselves to be owner in possession of land measuring 4 kanal 19 marlas vide sale deeds No.1005 dated 13.10.2017 in favour of appellant and sale deeds No.1004 dated 13.10.2017 and 1253 dated 27.5.2016 in favour of performa respondents, whereas, contesting respondent No.1 has claimed himself to be exclusive owner in possession over the land measuring nine marlas vide registered sale deed No.1295 dated 8.6.2009. The fact that Sh. Harvinder Pal Singh is the common vendor of both the parties is not disputed. The contesting respondent No.1 in his written statement has specifically pleaded that the vendors of the appellant and performa respondent No.2 had purchased some share of joint land comprised in Khewat No.136, Khatoni No.138, Rect. No.31, Killa No.11/2, Khewat No.139, Khatoni No.141, Rect. No.31 from Harvinder Pal Singh. Both the parties had placed on record copies of their respective sale deeds to prove their ownership and possession over respective lands purchased by them. Learned lower court after hearing the parties to the suit in the impugned order has observed that the appellant and performa respondent had purchased only a share in the suit property and not a specific portion. The court has further observed that as appellant and performa respondents are not exclusive owners in possession over any portion of the suit property and thus no prima facie case is made out in their favour and hence, dismissed the application under Order 39 Rule 1 and 2 CPC.

The appellant in para No.14 of the ground of appeal has mentioned that in jamabandi for the year 2017-2018 the appellant along with performa respondents have been shown as exclusive owner in possession of the suit land. However, from the perusal of copy of sale deed dated 3.10.2017 relied upon by the appellant, it is revealed that the appellant had purchased 1/2 share in the land situated in Khewat No.136, Khatoni No.138, mustatil No.31 and half share in khewat No.139 Khatoni No.141, mustatil No.31, whereas the performa respondent vide sale deed dated 25.5.2016 had purchased total 4 kanal 19 marla of land from Mohan Yadav and Ishwar Singh. It is also relevant to mention here that as per the copy of sale deed in favour of appellant the vendor Ishwar Singh has mentioned his ownership and possession over the land sold to the appellant vide jamabandi for the year 2012-2013. But in the copy of jamabandi for the year 2012-2013 placed on record the name of vendors of appellant and performa respondent is not mentioned. Though copy of mutation No.826 in favour of Mohan Yadav and Ishwar Singh vendors of appellant and performa respondent has been placed on record but it is well settled law that mutation do not confer any title. Even otherwise as the fact that the vendor of the appellant and performa respondent had purchased the land sold to them from Harvinder Pal who is also the vendor of appellant and from the sale deed of appellant it is clear that he had purchased a share from the joint land since they are subsequent purchasers they cannot claim exclusive possession over the suit property without seeking partition of the joint land. It has been though argued that there had been oral partition of joint land but no document has been placed on record in this regard.

In view of above discussion this Court is of the view that learned court has rightly observed that no prima facie case or balance of convenience or irreparable loss lies in favour of appellant. Hence, while upholding the impugned order, the present appeal is dismissed. However, it is made clear that nothing expressed herein shall be taken as an opinion on the merits of the case. Copy of this judgment along with lower court record be sent back to court concerned and the appeal file be consigned to record room.”

4. In nutshell, the case of the petitioner/plaintiff, as per the plaint, is that she along with performa defendant are owners in possession of land comprising in khasra No.11/2 min west (3-16), killa No.10/3/1 (1-3) total 04 kanal 19 marla, as the plaintiff and the performa defendant have purchased the same vide sale deeds dated 27.05.2016 and 13.10.2017. This was followed by sanctioning of mutation in their favour. The petitioner/plaintiff claimed that defendant No.1/contesting respondent No.1 has her property towards eastern side and she has started interfering in the possession of plaintiff and property of performa defendant by way of raising construction. Accordingly, a decree of mandatory injunction is prayed that defendant No.1 be directed to dismantle her illegal construction raised on the property of the plaintiff, as shown in red colour of the site plan attached with the plaint; vacate the same and deliver the actual vacant physical possession to plaintiff and to grant a decree of permanent injunction restraining defendant No.1 from interfering in the possession of the plaintiff or raising any construction in future.

5. Defendant No.1 filed written statement and contested the suit on the ground that it is not maintainable as neither the common vendor of plaintiff and defendant No.1 is a party nor other co-sharer are impleaded as party. On merits, it is stated that defendant No.1 has purchased the land measuring 09 kanal 18 marla of share of total 28 kanal in rectangle No.31 on 01.09.2014 from the common vendor Harvinder Pal Singh. It is further stated in the written statement that the area of alleged encroachment is 35 feet x 75 feet in the northern western corner and the contesting defendant has nothing to do with the property of the plaintiff and defendant No.1, on the basis of sale deed dated 01.09.2014, has raised construction over the property much prior to the sale deed in favour of the plaintiff. It is further stated that mere fact that the plaintiff had purchased share in the property and mere mentioning of specific killa number do not change the nature of property and plaintiff being co-sharer has no right to seek injunction against the defendant. It is further stated that since defendant No.1 is in settled possession over the property and wanted to raise construction over the remaining part of the property purchased by her, present suit has been filed.

6. As noticed above, both the Courts have dismissed the application filed by the petitioner/plaintiff under Order 39 Rules 1 & 2 CPC.

7. Learned senior counsel for the petitioner has argued that in fact, the plaintiff purchased specific killa number with defined area and therefore, she was put in exclusive possession of the said khasra numbers and defendant No.1 is trying to encroach upon the same. It is further argued that Harvinder Pal Singh, vendor of the parties was allotted land in rectangle No.31 after the oral partition, on which mutation dated 20.08.2014 was sanctioned and defendant No.1 was a party to the said partition and therefore, she cannot claim any right over the land sold to the plaintiff. It is submitted that the plaintiff and performa defendant have purchased 02 kanal 09 marlas of land vide another sale deed dated 21.02.2018 from Mohan Yadav and Ishwar Singh and mutation on the basis of same has been sanctioned. It is further submitted that as per jamabandi for the year 2017-2018, defendant No.1 is shown to be in possession of killa No.12/2/2, therefore, the Courts below erred in not granting injunction in favour of the petitioner.

8. Learned counsel for the respondent has filed counter affidavit along with certain documents and has argued that the sale deed executed in favour of defendant No.1 is much prior in time and sale deed in favour of Mohan Yadav and Ishwar Singh by the original owner Harvinder Pal Singh is of 2014, from whom the plaintiff has purchased the property in 2018. It is thus submitted that vendor of defendant-respondent No.1, after selling the land in her favour, could not sell the land in favour of either plaintiff or Mohan Yadav or Ishwar Singh more than the share left with him and this can be ascertained only after leading the evidence. It is further submitted that since Harvinder Pal Singh is not impleaded as defendant, the plaintiff cannot seek any relief against defendant No.1, as Harvinder Pal Singh is common vendor of both the parties and the suit is not maintainable. It is lastly argued on behalf of respondent No.1 that well within her right, she has even filed a suit for declaration, in which Harvinder Pal Singh is also impleaded as defendant for settling the dispute inter-se the parties. It is thus argued that defendant No.1 has raised construction much before the purchase of land and only carrying out certain repairs at the spot.

9. After hearing learned counsel for the parties, I find no merit in the present civil revision.

10. It is worth noticing that vendor of the plaintiff, performa defendant and contesting defendant is common i.e. Harvinder Pal Singh, who had sold land to defendant No.1 in 2009 and thereafter, the plaintiff, Mohan Yadav and Ishwar Singh have purchased the land in 2016, 2017 & 2018 from him. Therefore, the contesting defendant being a purchaser prior in time, has a better right.

11. A perusal of the pleadings shows that there is no specific rebuttal to the plea taken in the written statement that defendant No.1, after purchasing the property in 2009, had raised construction over the property and therefore, she being a co-sharer, is in possession of the property purchased by her.

12. Both the Courts below have recorded a categoric finding that suit is not maintainable by one co-sharer against the other co-sharer as the plaintiff and performa defendant could not prove their exclusive possession over the portion of the property, which they have allegedly purchased.

13. The Courts below have also recorded a finding that no prima facie case or balance of convenience or irreparable loss lies in favour of the petitioner. The relief of mandatory injunction to direct defendant No.1 to remove the construction, cannot be granted by way of interim injunction, as it will amount to passing of decree at this stage.

14. Therefore, finding no illegality or infirmity in the impugned orders passed by the Courts below, present civil revision petition is dismissed.

Petition dismissed.

********