The lack of prima facie evidence negates the basis for granting an injunction in land possession disputes.

JUDGMENT :

Vikas Bahl, J. (Oral) -

This is a Civil Revision Petition filed under Article 227 of the Constitution of India for setting aside the order dated 28.02.2024 (Annexure P-3) vide which the Civil Judge (Jr.Div.), Gurugram had dismissed the application filed by the petitioner under Order 39 Rules 1 and 2 CPC. Challenge is also the order dated 17.12.2024 (Annexure P-4) vide which the appeal filed by the petitioner had been dismissed.

2. Learned counsel for the petitioner has submitted that although the plaintiff-petitioner is owner of 390 square yards of the land but he is cultivating the said land along with the land of his brothers and the total land which the petitioner is cultivating is 17 kanals. It is submitted that the said possession of the plaintiff is since long and that the defendants are in possession of the land which is on the road and for the access to the said land of which the plaintiff is in possession, there was a rasta from the land of the said defendants. It is submitted that the reason for filing the present suit is that the defendants have now put up wire fencing on the said rasta and are in the process of erecting a gate so as to restrain the present petitioner from using the said passage towards his land. It is submitted that the Courts below have illegally dismissed the application filed by the petitioner under Order 39 Rules 1 and 2 CPC and thus, the impugned orders deserve to be set aside and the application filed by the petitioner under Order 39 Rules 1 and 2 CPC deserves to be allowed.

3. This Court has heard the learned counsel for the petitioner and has perused the paper book and finds that the impugned orders are in accordance with law and deserve to be upheld and the revision petition being meritless, deserves to be dismissed for the reasons detailed hereinafter.

4. Brief facts of the case are that the present petitioner had filed a suit for declaration with permanent and mandatory injunction and the plaint has been annexed as Annexure P-2 along with the present petition. An application under Order 39 Rules 1 and 2 CPC was also filed along with the said suit. A written statement was filed by the defendants, although the said written statement has not been annexed with the present petition. The trial Court vide order dated 28.02.2024 had dismissed the said application by observing that the share of the petitioner is to the extent of 390 square yards but the plaintiff-petitioner had claimed right over the entire killa no.20, 11 and portion of killa no.10 as shown in green colour in the site plan (which has been annexed as Annexure P-1 along with the present petition). Reference was also made to the earlier suit filed by the plaintiff.

5. An appeal was filed by the petitioner against the said order, which was also dismissed vide order dated 17.12.2024. In the said order, it was observed that the plaintiff-present petitioner had relied upon the site plan attached with the plaint to claim that the portion which was shown in red colour in the said site plan was being used by him to reach the land which he was alleging to be in his possession and was comprised in killa no.11 and killa no.20. It was observed that from a perusal of the Aks Shijra, it had transpired that no such passage was in existence as claimed by the petitioner and that killa no.18 and 19 which had been shown to be a part of the joint land, by the petitioner, was actually owned and possessed by the defendants exclusively. It was observed that the plaintiff-petitioner had failed to show the existence of any passage and that the defendants who were the exclusive owners in possession of killa no.18 and 19 could not be restrained from use and occupation of the same. It was further observed that the