JUDGMENT :

Nidhi Gupta, J.

Present petition under Article 227 of the Constitution of India has been filed by the plaintiffs seeking setting aside of impugned order dated 28.05.2024 (Annexure P5) passed by learned Civil Judge, Junior Division, Gurugram whereby the application filed by the petitioner under Order 39 Rule 1 & 2 CPC has been dismissed; and the order dated 21.11.2024 (Annexure P6) passed by learned Additional District Judge, Gurugram whereby, the appeal filed by the petitioners/plaintiffs against order dated 28.5.2024, has been dismissed.

2. Brief facts of the case are that the plaintiffs filed the present suit for declaration (Annexure P1) with consequential relief of permanent injunction, claiming to be co-owners in possession of suit land described as bearing Rect. No.15 Killa no. 15/2/1(3-17) measuring 3 kanal 17 marla to the extent of 30/693 share measuring 3 marla 3 sarsai situated in revenue estate of Kaderpur, Tehsil Wazirabad, District Gurugram. Along with the said suit, the petitioners had filed an application under Order 39 Rules 1 and 2 read with Section 151 CPC (Annexure P2) which has been dismissed vide the impugned orders. Hence, present revision petition.

3. Learned Senior Counsel for the petitioners submits that the khasra number in dispute is bearing No.15/2/1, which in actual fact measures 3 kanal 17 marlas. However, due to error in the Jamabandi for the year 2000-01 and 2005-06 (Annexure P7), khasra No.15/2/1 is shown to be measuring 3 kanal 7 marla. Unaware of this, the petitioners had sold total land measuring 10 kanal 17 marla to defendants No.1 and 2 vide Sale Deed dated 19.04.2005 (Annexure P8), in which also it was shown that in khasra No.15/2/1 land measuring 3 kanal 7 marla had been sold. Thereafter, the said land measuring 10 kanal 17 marla was sold to various people and was now in the hands of defendants No.5 and 6/caveators herein.

4. Subsequently, the defendants No.5 and 6/respondents No.5 and 6 herein/caveators filed an application (Annexure P9) before the ACFG Gurugram seeking partition of khewat No.29 situated within the revenue estate of Kadarpur, Tehsil Sohna, District Gurgaon in which also the respondents No.5 and 6 along with respondents No.4, and 7 to 11 herein, were shown to be co-owners in possession of the agricultural land recorded in khewat No.29. In the said application also, the khasra No.15/2/1 was shown to bear land measuring 3 kanal 7 marla. Learned Senior Counsel submits that however, during partition proceedings during demarcation and measurement of the land, it was discovered that in actual fact the land in khasra No.15/2/1 was measuring 3 kanal 17 marla, and not 3 kanal 7 marla as wrongly recorded in the Jamabandis (Annexure P-7); and as reported by the Assistant Collector, 1st Grade, Tehsil Sohna, District Gurugram vide Naksha G (Annexure P10).

5. Thereafter, the petitioners started making inquiries and they were utterly shocked when it was revealed to them that the defendants in collusion with each other had illegally got partitioned the suit land vide order of partition dated 10.08.2011 which was got effected in the revenue record through mutation bearing No.2874 (Annexure P13). After making inquiries, the petitioners also discovered that the area of suit land has been wrongly mentioned to be 3 kanal 7 marla in the Jamabandi for the year 2000-01 and 2005-06 (Annexure P7) instead of 3 kanal 17 marla. Accordingly, the petitioners are co-owners in possession of the suit property to the extent of 30/693 share measuring 3 marla 3 sarsai, as vide Sale Deed dated 19.04.2005 out of 3 kanal 17 marla borne in khasra No.15/2/1, the petitioners/their predecessor-in-interest had sold only 3 kanal 7 marla. As such, the remaining share of the petitioners i.e. 3 marla 3 sarsai is still intact; and therefore, the petitioners ought to have been considered as owners in possession of the suit property. It is contended that it is admitted fact on record that the petitioners had never re