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Judgment
It is submitted by learned counsel for the petitioners that an application under Section 5 of the Limitation Act, bearing CAN 3449 of 2017, was filed by
the petitioners for condonation of delay in filing the present revisional application, being C. O. No. 1188 of 2017. However, since the petitioners have
invoked a constitutional remedy and there is only a negligible delay in preferring the instant revisional application, no order need be passed on the said
application and the same be treated as dismissed as redundant.
In view of the non availability of the said application on record, a photocopy of the same, filed by learned counsel for the petitioners, is treated to be
the office copy and this order is deemed to be passed on the said deemed application. The application for condonation of delay, being CAN 3449 of
2017, is dismissed as redundant, without any order as to costs. The challenge in the revision is at the instance of defendant nos. 2 and 3 in a suit for
declaration of title and consequential reliefs in respect of an immovable property.
By virtue of the impugned order, the appellate court affirmed an order of status quo passed by the court of first instance as regards possession, as well
as nature and character of the suit property, till disposal of the suit. While affirming such decision, the appellate court relegated the dispute as to
encroachment to the trial of the suit. The approach of the trial court was somewhat similar. It appears, upon hearing both sides, that the claim of the
present petitioners is restricted only to a portion of plot no. 793, which is a part of the suit property.
Apparently, the plaintiff/opposite party no. 1 has also staked claim to a portion of the same plot by virtue of a previous purchase deed. In view of the
contesting claims of the parties and in view of neither of the parties having been able to satisfy that their respective purchased portion were clearly
demarcated ones, a presumption can at least be drawn prima facie as to both the present petitioners and the opposite party no. 1 having title to
undemarcated portions of plot no. 793. As to the other plots covered by the suit property, the present petitioners have not made any claim and as such
the order of status quo passed in respect of such other plots cannot be interfered with in the present revision.
As to status quo as regards nature and character of the suit property, since regarding the plots other than plot no. 793, the petitioners do not have any
claim, such status quo also cannot be touched. However, although the petitioners have some claim in respect of an undemarcated portion of plot no.
793, the petitioners ought not to be permitted to change the nature and character of the said plot since the plaintiff/opposite party no. 1, on the basis of
documents produced, at least has a legitimate claim of co-ownership in respect of such plot, which cannot be curtailed by the petitioners by making
construction.
However, as far as the portion of the impugned orders granting status quo in respect of possession of plot no. 793 is concerned, such status quo ought
not to have been granted in view of the petitioners as well as the opposite party no. 1 having title to every inch of the said plot. In the event of an order
of injunction/status quo being passed in respect of possession, one of the parties might very well take undue advantage of such injunction to oust the
other.
Accordingly, C. O. No. 1188 of 2017 is allowed on contest in part, thereby setting aside that portion of the impugned order, whereby both the courts
below granted status quo as regards possession in respect of plot no. 793, which is a part of the suit property. It is made clear, that the order of status
quo as regards possession in respect of the other plots comprising the suit property and the order of status quo as regards nature and character as to
the entire suit property are not being interfered with. There will, however, be no order as to costs. Urgent certified website copies of this order, if
applied for, be made available to the parties upon compliance with the requisite formalities.