Punjab-Haryana High Court
Jagdev Singh And Ors. vs Sardarni Prem Parkash Kaur And Ors. on 23 September, 1992
Equivalent citations: (1993)104PLR68
JUDGMENT A.P. Chowdhri, J.
1. This appeal is directed against the order of the learned Senior Subordinate Judge, Ladhiana, dated November 12, 1991, dismissing the plaintiff-appellants' application under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
2. Briefly stated, the material facts are that the plaintiffs instituted the suit, out of which the present appeal has arisen, on September 18, 1990, for possession by partition of their share in property, by ad measurement about 6000 squre yards, situate at G T. Road/Choura Bazar near Clock Tower Ludhiana. The following pedigree table will help appreciate the facts : -
Naraira Singh |
----------------------------------------------------------
| |
Gajjan Singh Karan Singh Balwant Singh Basant Singh
(pre-deceased
soo)
|
|
Jaswant = Sardarni |
Singh Prem |------------------------------------
Kaur Plaintiffs and defendants 2
(deft. No. 1) to 12 are descendants
representing these branches.
3. The plaintiffs case was that Narain Singh purchased property measuring about 6000 square yards situated at the junction of G T. Road and Choura Bazar near Clock Tower Ludhiana by registered sale deed dated June 20, 1894. The plaintiffs and defendants Nos 2 to 12 are descendants from said Narain Singh from his aforesaid three branches. The plaintiffs learnt that defendant No. 1 had illegally, wrongfully and in an unauthorised manner and without the knowledge and consent of the plaintiffs had alienated some portions of the property in question. Details of such alienations together with the particulars including names of the vendees and the dates of execution of sale deeds are mentioned in the table given in paragraph 5 of the plaint. The table contains particulars of 13 sale deeds which were executed by defendant No. 1 from December 1968 to May 1975 in favour of defendants Nos. 13 to 21. It was further alleged that defendant No. 1 had entered into an agreement with defendant No. 26 and under the said agreement defendant No. 26 was constructing an air-conditioned market. The plaintiffs claimed that the alienations made by defendant No. 1 were illegal and not binding on them as well as defendants Nos. 2 to 12. In the alternative, it was pleaded that there was a family partition amongst the four sons of Narain Singh, whereby all the four brothers i.e. the sons of Narain Singh, got l/4th share in the entire property including the property in dispute. A memorandum of partition was prepared. The plaintiffs claimed their shares on the basis of the said family partition to the extent of 3/4th of the property in dispute.
4. In the written statement filed on behalf of defendant No. 1, a number of legal objections were taken. It was also pleaded that the suit was barred by limitation. Defendant No. I claimed that she had perfected her title by adverse possession. She had been in exclusive possession as an owner adverse to the plaintiffs and defendants No. 2 to 12. In assertion of her right, she had leased out the property to one Shiv Ram Batta by a registered lease deed dated November 20, 1937. The lesee constructed a Cinema Hall thereon. The initial lease of 25 years was renewed for another period of 25 years. She had been realising the rent under the lease to the exclusion of others. She entered into an agreement dated June 9, 1986, with defendant No. 26 The agreement was subsequently modified by another agreement dated September 26, 1987, and in pursuance of that agreement defendant No. 26 started construction of a multi-storied commercial complex called Minerva Air- Conditional Complex. The construction was started after obtaining sanction from the Municipal Corporation, Ludhiana, and the construction had already reached 6th floor. It was further stated that the property on which the Commercial Complex was being constructed included a portion which never belonged to Narain Singh at any stage. In fact that portion was evacuee property and had been purchased by defendant No. 26 from one Harnam Singh vide registered sale deed date December 4, 1987 who had purchased the property in open auction from the Rehabilitation Department.
5. Written statement was also filed on behalf of defendant No. 26, broadly on the same lines as the of defendant No. 1
6. Alongwith the suit, the plaintiffs field an application under order 39 Rules 1 and 2 of the Code of Civil Procedure with the prayer that till decision of the suit, defendant No. 26 be restrained from making any construction on the land in dispute. The application having been resisted, the learned trial Court went into question on a consideration of the pleadings and the documents relied upon by the parties came to the conclusion that the plaintiffs did not have a prima faci case, the balance of convenience was in favour of defendant No. 26 and the plaintiffs were no likely to suffer an irreparable injury and by the impugned order dismissed the application.
7. Aggrieved by the order, the plaintiffs have preferred this appeal.
8. I have heard Mr. S.P. Gupta, learned counsel for the appellants Mr. H.L. Sibal, Sr. Advocate, learned counsel for respondent No. 26, Mr. M.L. Sarin, Sr. Advocate, learned counsel for respondent No. 1 and Mr. O.P. Goyal. Sr. Advocate, for respondents Nos.23 and 24 and have perused the various documents on which the parties have placed their reliance for purpose of the present application.
9. It appears that there was one property called Sarai Hangoo Bahtiari Wali with main gate on G.T. road. It belonged to two persons in equal shares, namely, kaka and Fazal Din .It was mortgaged jointly by both co-owners with one Umrao Singh. Property on the Southern side of the main gate i.e. towards the Choura Bazar belonged to Fazal Din, while the property situated on the Northern side from the main gate belonged to Kaka. Fazal Din died and was succeeded by his two sons Rahim Bux abd Ilahi Bux and widow Mst. Hamiro. Kaka also died and was succeeded by his mother Mst. Sanwan, his widow Khadeeji Begum, a son Abdul Gafor and a daughter Hasina Bubi, By a sale deed dated June 9, 1894, Gujjan Singh son of Narain Singh purchased 1/2 share alongwith the right of redemption. Thereafter Gajjan Singh purchased mortgagee rights in respect of the whole of the property i.e. both the half shares. He thus become full owner of half and mortgagee in possession in respect of the remaining half of the property. By another sale deed dated June 20 1894, the legal representatives of Fazal Din sold the equity of redemption respecting their 1/2 share in favour of Narain Singh, father of Gajjan Singh .It was recited in the sale deed that possession in with the mortgagee and therefore, the same was not being transferred in favour of Narian Singh under the sale. In 1910 Sardar Narain Singh died without redeeming the property from his son Gajjan Singh. The equity of redemption was inherited by his four sons including Gajjan Singh, in equal shares. The property has not so far been redeemed. The right of redemption both under the old Act as well as the present Act of 1963 became barred by the expiry of limitation. Reference in this connection may be made to Section 28 and Articles 148 and 134 of the Limitation Act, 1908, as well as Section 27 and Article 61 of the Limitation Act, 1963. Section 67 of the Transfer of Property Act having not been made applicable in the State of Punjab, it was not necessary for the mortgagee Sardar Gajjan Singh to file a suit for foreclosure. With the expiry of the period of limitation, he automatically became owner with respect to the 1/2 share of which he was the mortgagee. It is neither pleaded nor shown on the basis of any material on record that the 1/2 share which was mortgaged with Sardar Gajjan Singh was redeemed either by Sardar Narain Singh or any of his successors-in-interest.
10. Sardar Narain Singh died on May 5, 1910. His right, title and interest in the property were inherited by his only son Jaswant Singh. Smt. Preni Parkash Kaur was the wife of said Jaswant Singh. Sardar Gajjan Singh executed a Will dated August 8, 1928. Under the said Will, the property of Sardar Gajjan Singh was to devolve upon his son Jaswant Singh and in case of his son dying issueless, his widow Smt Prem Parkash Kaur was to hold the property for life with no right of alienation. Jaswant Singh died on February 11, 1936, without any issue. Prem Parkash Kaur, therefore, succeeded to the property with a life estate therein. It may also be mentioned here that under the Will dated August 8. 1928, Sardar Gajjan Singh had given a life estate in favour of his daughter-in-law Smt Prem Parkash Kaur. On the death of Jaswant Singh, she succeeded to a life estate in the property not under the Will but on account of being widow of Jaswant Singh. Prima facie, therefore, her case came to be governed by sub-section (1) of Section 14 of the Hindu Succession Act and not by sub-section (2) thereof. On the coming into force of the Hindu Succession Act, 1956, therefore, Smt. Prem Parkash Kaur became absolute owner, even though initially she had succeeded to a life estate in the property under the Will of Sardar Gajjan Singh dated August 8, 1928.
11. Pritam Singh etc. filed a usual reversionary suit being Civil Suit No. 407 of 1957. In the suit, issue No. 6 was whether 'defendant No. 1 was full owner of the land in suit. In the judgment and decree dated February 27, 1959, it was held by the Subordinate Judge 1st Class, Ludhiana, that Smt. Prem Parkash Kaur had become full owner of the property. The above judgment and decree were affirmed in appeal by the learned Additional District Judge, Ludhiana, on May 9, 1960.
12. Mr. S. P. Gupta, learned counsel for the appellants, invited my attention to a writing, the annexure of which carries the date, of March 19, 1900. According to Mr. Gupta, this is a family settlement in which the various moveable and immoveable property belonging to the family were dealt with and it was agreed that on the conditions mentioned with regard to different pieces of property the four brothers, being the sons of Sardar Narain Singh, were to take l/4th shares. In the list of property annexed under the heading land and house at Serial No. 8 is 'legal property' 18 bighas Sarai Hangoo. Thus, according to Mr. Gupta, the property in. Sarai Hangoo belonged to the four brothers according to the said deed of settlement. Prima facie, I do cot find any substance in this contention On the basis of the various registered sale deeds, it has been stated above that Sardar Gajja Singh was full owner with respect to 1/2 share of the property cemprised in Sarai Hangoo and with regard to the remaining half the property was mortgaged with him The mortgage was in existence in the year 1990. There is no indication in the annexure that the property in Hasgoo Sarai was to belong to the four brothers on payment of the amount due under the mortgage. Secondly, the area of the property comprised in Sarai Hangoo does not tally with 18 bighas mentioned in the above annexure. Thirdly, in the registered Will dated August 8, 1928, Sardar Gujjan Singh described in detail the property previously comprised in Sarai Hangoo. In paragraph 6 it was stated that he built a magnificent and valuable house for himself in Ludhiana City after purchasing Sarai Hangoo vide four different sale deeds. These four different sale deeds include the sale deeds dated June 9, 1894, February 25, 1901 and October 19, 1911. It is not clear at this stage as to which was the 4th registered deed, to which reference was made in the Will. If the suggestion of Mr. Gupta were accepted, it would mean that in the family settlement of the year 1900 even property accuired by Sardar Gajjan Singh in later period i.e. in February 1901 and October 1911 was also put into the family hotch potch. A perusal of the various parts of the Will of Sardar Gajjan Singh unmistakably shows that there was no love lost between him and his brother and their children. Even if it is assumed that the property in question was put in the family hotch potch, the descendants from the three branches of the family of Sardar Narain Singh remained ousted from the property in dispute and thus Smt. Prem Parkash Kaur perfected her title by adverse possession. The fact that she executed a registered lease deed in favour of Shiv Ram Batta and under the lease deed the lease constructed a Cinema House and continued paying rent to Smt. Prem Parkash Kaur together with other transactions in which Smt. Prem ParkashKaur dealt with the property from time to time, shows that she held the property to the exclusion of the other alleged co-owners and, in fact, adverse to them and prima facie she had perfected her title by adverse possession
13. Mr. Gupta next contended that Smt. Prem Parkash Kaur had only a limited estate and that too under the Will left by Sardar Gajjan Singh and that on her death on April 22, 1991, during the pendency of the suit, all the rights, title and interest in the property stood reverted to the heirs of her father-in-law, her husband Jaswant Singh having died issueless. I have briefly referred to this aspect of the case that in Civil Suit No. 407 of 1957, between some of the reversioners and Smt. Prem Parkash Kaur it was held that Smt Prem Parkash Kaur had become absolute owner on the coming into force of the Hindu Succession Act by virtue of Section 14(1) of the Act. Mr. Gupta invited my attention to the fact that the property in question was placed under Court of Wards in the year 1943. It was released in favour of Smt. Prem Parkash Kaur on December 1, 1946, inter alia, on an undertaking given by Smt. Prem Parkash Kaur that she had only a life estate in the property and that she would not alienate any part thereof. No doubt, initially Smt. Prem Parkash Kaur got a life estate in the property under the Will dated August 8, 1928, left by Sardar Gajjan Singh, but on the death of Sardar Gajjan Singh, his son Jaswant Singh, inherited his property and on the death of Jaswant Singh, his widow Smt. Prem Parkash Kaur got the property by succession and in accordance with the law then in vogue she got only life estate in lieu of maintenance This was later continued as life estate under the Hindu Women's Right to Property Act, 1937 It was thus not by operation of the Will that she got the life estate, but she succeeded to the property as widow of Jaswant Singh, who died on February 11, 1936. Prima facie, therefore, Smt. Prem Parkash Kaur became absolute owner in terms of sub section (1) of Section 14 of the Hindu Succession Act, her undertaking to the Court of Wards notwithstanding On the basis of the material placed on record, therefore, the plaintiffs have not been able to make out a prima facie case to entitle them for the grant of temporary injunction.
14. It is not disputed that the building has been constructed upto the 6th floor. The question is whether the balance of convenience lies in stopping the further construction or letting the construction proceed and be completed In this connection, it is relevant to mention that even though the suit was filed on September 18, 1990, alongwith the application for temporary injunction the application was not pressed upto May 9, 1991. In filling the appeal also the plaintiff showed no keenness. On a balancing of the relevant factors, I am of the view that the balance of convenience is clearly against the grant of the injunction. The plaintiffs would not suffer any irreparable injury in the event of the suit being decreed and this question has to be considered by placing oneself in the situation in which we are today, namely, six stories of the building complex having been completed. This is not a case relating to any vacant piece of land where the question may be whether the vendee should be allowed to go ahead with construction or not.
15. Apart from the fact that no reason has been furnished by the appellants, justifying interference in the order passed by the trial Court, it is well settled law that in matters of grant or refusal of temporary injunction by the trial Court on a proper appreciation of the pleadings and material before it, an appellate Court is always slow in interference.
16. For these reasons, I find no merit in the appeal, which is dismissed, leaving the parties to bear their own costs.
17. The discussion made in this order is not intended to cause prejudice to either party. The discussion is meant only for the effective disposal of this appeal.
18. The parties through their counsel are directed to appear in the trial Court on September 30, 1992, for further proceedings according to law. The Court shall expedite the disposal of the suit as far as practicable.