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Judgment
Alok Singh, J.—Present petition is filed invoking the jurisdiction of this Court under Article 227 of the Constitution of India impugning the order dated 09.07.2007 (Annexure P-4), passed by Additional Civil Judge (Senior Division), Gurgaon as well as order dated 24.09.2008 (Annexure P-6), passed by Additional District Judge, Gurgaon whereby both the Courts below pleased to allow the application under Order 39 Rule 1 and 2 CPC restraining the defendants from changing the nature of the suit land by raising the construction over the suit land till the disposal of the suit or till the partition by meets and bounds.
The brief facts of the present case are that respondent-plaintiff has filed a suit before the learned trial Court for partition and separate possession alleging therein that defendants and plaintiff are co-sharer in the suit property and are in joint possession. It is further alleged in the plaint that since defendants have started illegally and forcibly intervening in the joint ownership in the suit land and are threatening to construct the building thereupon, the cause of action arises in favour of the plaintiff for filing the suit. An application seeking injunction under Order 39 Rule 1 and 2 CPC was also moved along with the plaint.
Defendants-petitioners herein contested the said application by way of filing of their reply. Both the Courts below while allowing the application under Order 39 Rule 1 and 2 have held that both the parties are joint owner and are in joint possession of the property. Both the Courts below have further held that property has not been partitioned as yet and none of the party is in exclusive possession of any separate portion. Both the Courts below have further held that none of the party should be permitted to change the nature of the property during the pendency of the suit. Feeling aggrieved from the orders, passed by the Courts below, defendants are invoking the jurisdiction of this Court under Article 227 of the Constitution of India.
This Court while exercising supervisory jurisdiction under Article 227 of the Constitution of India can interfere with the orders passed by the subordinate Courts ordinarily only when this Court finds that Courts below have committed any jurisdictional error or any manifest error of law.
Both the Courts below have recorded prima facie concurrent findings that property is still joint and both the parties are in joint possession. Both the Courts below have rightly recorded that suit property is green belt. In the opinion of this Court, both the Courts below committed no jurisdictional error or manifest of law while holding that prima facie case, balance of convenience is in favour of the plaintiff. Both the Courts below were well within their jurisdiction while observing that suit property should be preserved in the present form during the pendency of suit for partition. However, in view of the fact that parties are joint owner and property has not been partitioned and suit property is green belt, both the Courts below instead of granting injunction against the defendants should have directed both the parties to maintain status-quo over the property in dispute.
In view of this, orders passed by the Courts below is modified to the extent that both the parties shall maintain status-quo qua the possession and the nature of the property till the disposal of the suit.
Both the parties are directed to appear before the learned trial Court on 25.08.2010 for further direction.
Petition is disposed of in the above direction.