Mr. L.N. Mittal, J. (Oral) - CM No.9244-CII of 2012

Allowed as prayed for.

Main Case

Plaintiff- Harminder Singh has filed this revision petition under Article 227 of the Constitution of India to challenge order dated 07.10.2011 Annexure P-1 passed by trial Court and judgment dated 17.02.2012 Annexure P-2 passed by the appellate Court thereby dismissing application of plaintiffpetitioner for temporary injunction during pendency of the suit.

2. Plaintiff petitioner has filed suit against defendant/respondents alleging that the petitioner purchased 5 Kanals 13 ½ Marlas land by way of two sale deeds and out of it, transferred 4 Kanals land to his son Ramandeep Singh vide transfer deed dated 22.01.2009 Annexure P-6 and Ramandeep Singh sold the same to defendants vide registered sale deed dated 26.03.2009 Annexure P-7. The plaintiff alleged that the suit land is still joint land and plaintiff is also co-sharer therein. Plaintiff has already filed application for partition of the suit land. However, defendants want to change the nature of the suit land by raising construction. Plaintiff sought permanent injunction against defendants restraining them from doing so. Plaintiff also claimed temporary injunction to the same effect during pendency of the suit.

3. Defendant No.1 contended that she has purchased the suit land from plaintiff’s son and is raising only boundary wall to protect her possession thereon. Various other pleas were also raised.

4. Learned Civil Judge (Junior Division), Patiala vide impugned order Annexure P-1 dismissed the plaintiff’s application for temporary injunction. Appeal against the same preferred by plaintiff has been dismissed by learned Additional District Judge, Patiala vide impugned judgment Annexure P-2. Feeling aggrieved, plaintiff has filed this revision petition, assailing aforesaid orders of both the courts below.

5. I have heard learned counsel for the petitioner and perused the case file.

6. Counsel for the petitioner vehemently contended that plaintiffpetitioner is still left with share of 1 Kanals 13 ½ Marlas land in the joint land and is cosharer in the joint land and defendants are also cosharers therein and, therefore, without partition, defendants cannot raise construction in the joint land and cannot encroach upon the land of the plaintiff-petitioner. Reliance in support of this contention has been placed on four judgments of this court namely Nazar Mohd. Khan versus Arshad Ali Khan and others reported as 1996(1) PLR, 335; Ram Niwas versus Jai Ram alias Tej Ram reported as 2000(3) Civil Court Cases, 379; Pritam Singh & others versus Chanan Singh & others reported as 2003(1) Civil Court cases, 426 (P&H) and Rishal Singh & others versus Shri Bhagwan & another reported as 2007(2) Civil Court cases, 793.

7. I have carefully considered the aforesaid contention, but the same is misconceived and meritless in the facts and circumstance of the instant case. The plaintiff-petitioner himself transferred 4 Kanals land in suit to his son Ramandeep Singh vide transfer deed Annexure P-6 and delivered possession of the said 4 Kanals land to Ramandeep Singh who thereafter sold the same to defendants vide sale deed Annexure P-7 and also gave possession of same 4 Kanals land to the defendants. Thus the defendants have derived possession of 4 Kanals land in question from the plaintiff himself through his son. Consequently, the plaintiff-petitioner cannot object to raising of boundary wall only of the said land by the defendants who are in exclusive possession thereof as per plaintiff’s own documents. Defendant No.1 has specifically pleaded that they are raising boundary wall only to protect their possession. It goes without saying that the said construction shall be subject to partition of the joint land. However, presently the defendants cannot be restrained from raising the boundary wall when they have derived exclusive possession of 4 Kanals land in question from the plaintiff himself.

8. In view of