Possession can be restored under Section 144 CPC even if the main suit's title question remains unresolved.

JUDGMENT :

Vikram Aggarwal, J.

The present petition has been preferred under Article 227 of the Constitution of India assailing the order dated 03.02.2025 passed by the Court of learned Civil Judge (Junior Division), Jalandhar vide which the application under Section 144 of the Code of Civil Procedure , 1908 (for short 'CPC') for restitution of possession was allowed.

2. The facts, as emanating from the revision petition, are that the petitioner/plaintiff (Jyoti) filed a civil suit against the respondents/defendants for declaration to the effect that she was the owner of house bearing No.481 situated at Gandhi Camp, Jalandhar (hereinafter referred to as the 'suit property') on the basis of a Will dated 27.01.2000 executed by one Late Sh. Mangal Dass in favour of the petitioner/plaintiff. Relief of possession of the suit property with consequential relief of permanent injunction was also sought. The case set up by the petitioner/plaintiff was that Mangal Dass was the brother-in-law (Jeth) (husband's brother) of the petitioner/plaintiff and was owner in possession of the suit property. He was survived by his three daughters (respondents/defendants. The wife of Mangal Dass and thereafter the petitioner/plaintiff served Mangal Dass in every respect. She also assisted Mangal Dass in bringing up the respondents/defendants and in solemnizing their marriages. As such, Mangal Dass executed a Will dated 27.01.2000 in favour of the petitioner/plaintiff. Since the respondents/defendants had forcibly taken over the possession, the suit was filed.

3. The respondents/defendants, as per the record, did not appear despite service and were accordingly proceeded against ex parte. Ex parte judgment and decree in favour of the petitioner/plaintiff was passed on 01.09.2011.

4. An application under Order IX Rule 13 CPC was filed by the respondents/defendants, which was allowed on 06.04.2017 by the Court of learned Civil Judge (Junior Division), Jalandhar.

5. In the meantime, on the basis of the judgment and decree dated 01.09.2011, an execution petition was preferred by the petitioner/plaintiff and possession of the suit property was delivered to her. After the application under Order IX Rule 13 CPC was allowed, the main suit was dismissed vide judgment and decree dated 02.01.2024 whereafter an application under Section 144 CPC was filed for restoration of possession. This application was allowed by way of the impugned order and warrants of possession were issued, leading to the filing of the present revision petition.

6. I have heard learned counsel for the petitioner.

7. Learned counsel for the petitioner submits that the Court concerned has gravely erred in allowing the petition under Section 144 CPC. He submits that though an appeal against the judgment and decree dated 02.01.2024 vide which the suit was also dismissed, the regular second appeal is pending. He submits that till the question of title was not decided, the possession could not have been restored.

8. In support of his contentions, learned counsel places reliance upon the judgment passed by the Supreme Court of India in the case of 'Murti Bhawani Mata Mandir Represented Through Pujari Ganesh Lal (Dead) Through Legal Representative Kailash Vs. Ramesh and Others', (2019) 3 SCC 707 as also the judgment passed by the Andhra Pradesh High Court in the case of ' Hiranand and Anr. Vs. T.N. Khambati and Ors. ', 2005 (29) RCR (Civil).

9. I have considered the submissions made by learned counsel for the petitioner/plaintiff but find the same to be devoid of merit.

10. Section 144 CPC la