Judgment

Mr. Arun Monga, J.

Petition herein is for setting aside the impugned order dated 28.03.2023 (Annexure P-1) passed by learned Additional District Judge, Ambala whereby order dated 03.03.2023 (Annexure P-10) passed by learned Additional Civil Judge (Junior Division), Naraingarh, District Ambala was set aside and petitioners/defendants No.1 to 3were restrained from interfering or from raising construction over suit property alleged to be in possession of plaintiff/respondent No.1.

2. The revision petition is premised on the averments that plaintiff/respondent No.1 herein filed suit for mandatory injunction with the prayer that petitioners/defendants No.1 to 3 may be directed to remove encroachment/ construction raised by them over plot measuring 10 Marlas, being part of Khasra No.49//10 (8-0), situated in village Dera, H.B. No.190, Tehsil Narangarh, District Ambala. This portion was reflected as ABCD in the site plan. Further prayed to restrain defendants No.1 to 3/petitioners herein from interfering in peaceful possession of plaintiff.

2.1. Along with the suit, plaintiff had also filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 (for short ‘CPC’) for grant of ad interim injunction restraining defendants No.1 to 3 from interfering in peaceful and lawful possession of plaintiff over land in question. Said application was dismissed by learned trial Court vide order dated 03.03.2023 (Annexure P-10).

2.2. Aggrieved, plaintiff/respondent No.1 herein filed an appeal against aforesaid order, which was allowed by learned First Appellate Court vide impugned order dated 28.03.2023 (Annexure P-1).

3. Learned counsel for petitioners would contend that no dimensions of land purchased by plaintiff has been mentioned in the sale deed dated 05.09.2005 to establish that plaintiff was delivered possession of some specific portion by his predecessor. Also contends that under the garb of injunction suit and ad interim application, plaintiff is trying to take possession of area under possession of petitioners/defendants No.1 to 3.

3.1. Further contends that parties are co-sharers in Khasra No.49//10 and therefore, no injunction can be granted. He further contends that there is nothing pleaded in the plaint filed by plaintiff that construction raised by petitioners is on the portion of plaintiff. Suit is barred in view of provisions of Section 41(h) of the SPECIFIC RELIEF ACT , 1963 since plaintiff has an equally efficacious remedy of filing suit for partition to get entire land partitioned.

3.2. He would further contend that by passing impugned order dated 28.03.2023 (Annexure P-1), learned First Appellate Court has become functus officio and cannot entertain any such application of plaintiff. Petitioners are already in possession of suit property and raised construction over portion in their possession in joint land.

4. On the other hand, learned counsel for caveator-respondent No.1/ plaintiff opposes the revision petition and submits that impugned order dated 28.03.2023 (Annexure P-1) passed by learned Additional District Judge, Ambala is a well-reasoned order and deserves no interference.

5. I have heard learned counsel for parties and gone through the record.

6. Having heard rival contentions and after perusal of impugned order of the Appellate Court, I am of the view that in order to balance the equities, same warrants interference from this Court. More of it later.

6.1. Before adverting further, it would be apposite to reproduce learned trial Court’s order dated 03.03.2023 (Annexure P-10), set aside by learned First Appellate Court, which is as below:-

“18. Now, first of all, the plaintiff h