Harbhajan Singh Brar vs Prabhsharan Singh and Others

G.C. Garg, J.—Plaintiff-respondents filed a suit for permanent injunction wherein they also moved an application for the grant of ad interim injunction. Application was allowed by the trial court by order dated 15.10.1996. The defendant-petitioner was restrained from interfering in the possession of the plaintiffs forcibly and illegally till the disposal of the suit. Appeal there against was dismissed by learned Addl. District Judge by order dated. 22.11.1996. Hence this revision at the instance of the defendant.

Learned counsel for the petitioner submitted that father of the plaintiffs was the owner of the plot in dispute. He entered into agreement to sell the plot to the defendant-petitioner and the petitioner paid sum of Rs. 1,35,000/- as earnest money at the time of execution of agreement to sell and physical possession of the land was delivered to him. Later on, father and the mother of the plaintiffs died. After their death, the defendant requested the plaintiffs to get the sale deed registered and on their refusal, he filed a suit for specific performance which is pending disposal. But in the meantime, the plaintiffs filed the present suit for permanent injunction. Learned counsel for the petitioner further submitted that the defendant is in possession of the plot in dispute since the time of execution of the agreement to sell and therefore, no injunction could be issued against him. Learned counsel also submitted that the two courts below failed to appreciate this fact and have granted ad interim injunction and have wrongly come to the conclusion that since the revenue record with regard to the plot in dispute is in favour of the plaintiffs, they are deemed to be in possession thereof and thus entitled to the injunction. The courts below further erred in observing that the defendant has not taken any step to get the sale deed executed whereas in fact he was always ready and willing to pay the balance amount of consideration and perform his part of the contract and has even requested the plaintiffs many a times in that behalf and it is only on their refusal to get the sale deed registered that the defendant had to file a suit for specific performance. Learned counsel for the plaintiff-respondents on the other hand submitted that the plaintiffs are in possession of the plot in dispute and this is so evident from the revenue record as well and thus no interference is called for with the orders of the courts below.

After hearing learned counsel for the parties, I am of the opinion that this petition deserves to succeed. The plaintiffs filed the present suit on the allegations that the plot in question was purchased by their father from one Balwinder Singh alias Baljit Singh vide sale deed dated 17.5.1989 which was registered on 18.5.1989 and the possession of the plot was delivered to their father. At that time they were minors. They further averred that they built a room and one Khurli and erected a pillar with boundary wall in the said plot. Father of the plaintiffs died on 30.8.1992 and later on their mother also died. It was also averred that the defendant is residing in a house adjoining to the plot in dispute and taking advantage of the death of their parents and their childhood, he threatened to interfere in their peaceful possession forcibly over the plot in dispute for which he has no right. On the other hand, the stand of the defendant is that father of the plaintiffs, Nazar Singh had entered into an agreement dated 27.8.1992, which is only of three days prior to the date of death of Nazar Singh, to sell the plot in dispute to him for a total consideration of Rs. 2,70,000/- and he paid a sum of Rs. 1,35,000/- as earnest money at the time of execution of the agreement and was put in physical possession of the plot by the father of the plaintiffs and since then he is in possession of the suit property.

In the wake of the above facts, the question to be decided by the trial court in the present suit is whether the plaintiffs are in possession of the plot in dispute as asserted by them in the suit and the stand taken by the defendant, by filing reply to the injunction application of being in possession of the property after the father of the plaintiffs entered into agreement dated 27.8.1992 to sell the same to him is false. It is also now the stand of the defendant-petitioner that he has filed a suit for specific performance against the plaintiffs which is pending disposal in the trial court and this fact has not been disputed before me by learned counsel for the respondents. In the suit for permanent injunction the authenticity of the agreement to sell will be considered and consequently a finding will be recorded, whether the defendant is in possession of the property in dispute or the plaintiffs are in possession thereof as alleged in the suit and thus entitled to permanent injunction as prayed for. In the suit for specific performance also, the trial court will have to consider the authenticity of the agreement to sell and record a finding, whether the father of the plaintiffs entered into agreement in question in favour of the defendant and the plaintiffs are liable to get the sale deed registered in his favour. In these circumstances, I am of the opinion that the two suits deserve to be clubbed and disposed of together by one court as the decision in one suit would affect the decision of the other. In any case, at present there is a dispute regarding possession of the property as both the parties are asserting their possession over the property in dispute in view of the their respective stands and in such a situation the proper course to be adopted by the court is to direct the parties to maintain status quo as to possession.

In view of the above, this revision petition is allowed and the order under revision is set aside. Having regard to the facts and circumstances of this case the suit for specific performance pending between the parties is ordered to be clubbed with the present suit. Learned Civil Judge (Sr. Division) Amritsar is directed to ensure that the suit for specific performance pending between the parties in respect of the property in dispute is clubbed with the present suit and the two suits are entrusted and disposed of by one Subordinate Judge on one date, preferably within a period of one year. The trial Court to whom the two suits are entrusted is directed to afford a maximum of two to three opportunities to each of the parties for their respective evidence at short intervals. It is further ordered that the parties shall maintain status quo regarding possession of the property in dispute till the disposal of the two suits. Parties through their counsel are directed to appear before learned Civil Judge (Sr. Division) Amritsar on 17.9.1998 so as to enable to entrust the abovesaid two suits to the court of com- patent jurisdiction for disposal on one date in accordance with law.