Acquiescence to construction on the property can invalidate a claim for injunction against the defendants.

ORDER

Jasgurpreet Singh Puri, J. (Oral). - The present petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 12.02.2021 (Annexure P-5) passed by the learned Additional District Judge, Yamuna Nagar at Jagadhri vide which the appeal filed by the respondent was allowed and the order dated 28.9.2020 (Annexure P-4) passed by learned Civil Judge (Jr. Divn), Jagadhri was set-aside and the application under Order 39 Rule 1 and 2 has been dismissed.

2. The petitioner, who is the plaintiff, had filed a civil suit for permanent injunction restraining the defendants from raising the construction and changing the existing portion and from alienating specific portion of the land measuring 67 kanal 08 marlas without getting the same partitioned and further restraining the defendants from interfering in the actual and physical possession of the plaintiff as co-sharer over the land measuring 23 kanal 8 marlas by way of raising construction or in any other manner whatsoever without getting the same partitioned.

3. The learned counsel for the petitioner has submitted that alongwith the present suit, an application under Order 39 Rule 1 and 2 CPC read with Section 151 CPC was also filed which was allowed by the learned Civil Judge (Junior Division), Jagadhari on 28.09.2020. The learned counsel has submitted that out of the total land which came to the share of Ishar Singh, Shakuntla Devi, Ramesh Kumar, Gurmej Kumar and Pala Ram and before the filing of the partition proceedings, the said Pala Ram alienated the land measuring 1 kanal 15 marlas to Meena Devi. Similarly, Ishar Singh also alienated the land measuring 3 kanal 10 marlas to Ganga Devi vide sale-deeds dated 18.7.2013 and 24.8.2015 respectively. In both the sale-deeds, no specific portion was mentioned. Thereafter, the aforesaid Meena Devi sold the land measuring 1 kanal 15 marlas to Mamta-respondent No.1 vide sale-deeds dated 1.9.2014 and 8.8.2017 respectively. Similarly, Ganga Devi also sold the land measuring 84 Sq. yards to Mamta vide sale-deed dated 22.6.2020 and again no specific portion was given in the sale-deed. He submitted that the sale-deeds did not mention any specific portion, the application under Order 39 Rule 1 and 2 CPC was rightly allowed by the learned Civil Judge (Jr. Divn), Jagadhri but on appeal learned Additional District Judge, Yamuna Nagar at Jagadhri has erroneously set-aside the order passed by the learned Civil Judge(Jr. Divn), Jagadhri.

4. I have heard the learned counsel for the petitioner.

5. A perusal of the order passed by the learned Civil Judge (Jr. Divn), Jagadhri would show that the application under Order 39 Rule 1 and 2 CPC has been allowed on the ground that the alienation in favour of respondent No. 1 was made without mentioning of any specific khasra numbers and, therefore, the learned Civil Judge (Jr. Dinv), Jagadhri considered it fit to grant interim order since there was no partition of land.

6. When the aforesaid order was assailed in appeal before the learned Additional District Judge, Yamuna Nagar at Jagadhri, various other factors and factual position came forth and on the basis of the same the learned Additional District Judge, Yamuna Nagar at Jagadhri set-aside the order passed by the learned Civil Judge (Jr. Divn), Jagadhri.

7. The factors which weighed before the Additional Distt. Judge, Yamuna Nagar at Jagadhri, were that during the pendency of the application, a Halqa Kanungo was appointed as Local Commissioner to bring on record the actual and factual position of the property and the Local Commissioner after demarcating of the property had submitted his report alongwith photographs depicting the actual and factual position existing at the spot. The factual position which has emerged from the pleadings and the documents was that 8 persons including the plaintiff as well as vendors of the defendants, namely, Ishar Singh and Pala Ram were the co-sharers of the land measuring 84 kanal