JUDGMENT :

Jas Jit Singh Bedi, J -

The prayer in the present petition under Section 482 Cr.PC. is for quashing of the order dated 01.05.2015 (Annexure P-3) passed by the Sub Divisional Magistrate, Hodal in Application No.36/SDM dated 06.04.2015 registered under Sections 145/146 Cr.PC. in case titled as Salim Versus Kishna & another whereby the Court has directed that possession be handed over to applicant/respondent No.2-Salim and the Revisional Order dated 12.02.2020 (Annexure P-5) passed by the Addl. Sessions Judge, Palwal in CRR-86/2016 dated 18.06.2016 titled as Kishna & another Vs. Salim whereby the revision petition filed by the petitioner was dismissed.

2. The brief facts of the case are that respondent No.2-Salim filed a suit on 21.08.2009 for mandatory and permanent injunction against the petitioners and others wherein he admitted the possession of the defendant (therein) upon the suit land.

3. The Civil Court, Hodal vide judgment and decree dated 31.10.2014 dismissed the suit of the respondent No.2/plaintiff on the grounds of maintainability and further gave a finding that defendant No.l (therein) (present petitioner party) was already in possession of the suit land before respondent No.2 (herein) had come into the picture and therefore, there was no encroachment upon the suit land. The copy of the judgment dated 31.10.2014 is attached as Annexure P-1 to the petition. The relevant extract of the said judgment is as under:-

15. Onus to prove this issue was on the plaintiff but nothing has been stated by the plaintiff as to how the present suit is maintainable. In para no.3 of the plaint itself it has been mentioned by the plaintiff that the defendant no.l had raised construction over killa No. 13/1 of red. No. 69, to the extent of 150 sq. yards, two years back, in the absence of the vendor of the plaintiff. By this, plaintiff meant to say that the Defendant no.l was in possession of the suit land, since the time of its precious owner i.e. namely Smt. Dropti Devi d/o Smt. Jamuna Devi. Plaintiff has purchased the suit land, detailed in para no.l of the plaint, vide sale deed dated 16.04.2009 (Ex.Pl) and has filed the present suit on 21.08.2009. Defendant no.l, Narain Singh, is in possession of the suit land, before plaintiff purchased the same vide Ex.Pl. Hence the plaintiff should have filed a suit for possession, instead of filling the present suit for mandatory injunction, Defendant no.l has not encroached the suit land, when the same was in the ownership of the plaintiff. Therefore, in this situation, a suit for possession is maintainable, rather a suit for mandatory injunction. Plaintiff has a better alternative remedy to avail, instead of filing the present suit for mandatory injunction. Section 41(h) of the Specific Relief Act, provides that:

16. Since the defendant no.l was already in possession of the suit land, before the plaintiff purchased the same vide sale deed Ex.Pl, no suit for mandatory injunction is maintainable. Hence, the issue regarding maintainability of the suit is hereby decided in favour of the defendants and against the plaintiff. Judgments cited by the plaintiff are not applicable to the facts and circumstances of the present case.

RELIEF:

17. Since the suit of the plaintiff is held to be not maintainable, on the ground that the defendant no.l has not encroached the suit land, the present suit is hereby dismissed, with no order as to cost. Decree-sheet be prepared accordingly and file be consigned to the record room after due compliance.

4. The respondent No.2 filed an appeal against the aforementioned judgment and decree dated 31.10.2014 on 13.11.2014 before the Addl. District Judge (1), Palwal and the said appeal of respondent No.2 came to be dismissed vide judgment dated 19.07.2016. The copy of the said judgment dated 19.07.2016 is attached as Annexure P-2 to the petition. The relevant extract of the said judgment is as under:-

22. In the case in hand plaintiff has pleaded that the encroachment made