Rajasthan High Court - Jaipur
Vinod Kumar Sharma And Anr vs Narendra Kumar And Ors on 3 July, 2017
[S.B. CMA - 6413/2016]
1
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Miscellaneous Appeal No. 6413 / 2016
1. Vinod Kumar Sharma S/o Late Mangilal, B/c Brahmin, Aged
About 53 Years, R/o Opp. Rajendra Hospital, Ward No. 26 New,
Rani Sati Road, Sikar, Tehsil & Distt. Sikar, At Present Resident of
Sudarshana Nagar, Near Nagnichiji Mandir, Bikaner.
2. Pramod Kumar Sharma S/o Late Mangilal, B/c Brahmin, Aged
About 48 Years, R/o Opp. Rajendra Hospital, Ward No. 26 New,
Rani Sati Road, Sikar, Tehsil & Distt. Sikar.
----Defendants/Appellants
Versus
1. Narendra Kumar S/o Late Mangilal, B/c Brahmin, Aged About
45 Years, R/o Opp. Rajendra Hospital, Ward No. 26 New, Rani Sati
Road, Sikar, Tehsil & Distt. Sikar.
-----Plaintiff/respondent
2. Smt. Sita Devi W/o Late Mangilal, B/c Brahmin, Aged About 77
Years, R/o Opp. Rajendra Hospital, Ward No. 26 New, Rani Sati
Road, Sikar, Tehsil & Distt. Sikar.
3. Smt. Lalita Devi D/o Late Mangilal, W/o Banmali Kumar Purohit,
B/c Brahmin, Aged About 50 Years, R/o Sakadi Gali, Purohiton Ka
Mohalla, Fathepur Shekhawati, Distt. Sikar.
4. Nagar Parishad, Sikar through Commissioner
5. Sub Registrar, Sub Registrar Office, Sikar.
----Defendants/Respondents
SB Civil Miscellaneous Appeal under
Order 43 Rule 1 (r) of CPC against
the order dated 16/11/2016 passed
by Additional District Judge No. 3,
Sikar in Civil Misc. Case No.
93/2016, (CIS No. 123/2016) titled
as Narendra Kumar versus Vinod
Kumar & Ors., whereby the
Temporary Injunction Application
filed by the plaintiff/respondent
under Order 39 Rule 1 and 2 of CPC
has been partly allowed.
_____________________________________________________
For Appellant(s) : Mr. Anoop Dhand, Adv.
For Respondent(s) : Mr. Iswar Tiwari, Adv.
Mr. Rahul Kamwar, Adv.
_____________________________________________________
[S.B. CMA - 6413/2016]
2
HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI
ORDER
Date of Order : : 03/07/2017
The instant Civil Misc. Appeal has been preferred by the
defendant/appellants against the order dated 16/11/2016 passed
by Additional District Judge No. 3, Sikar in Civil Misc. Case No.
93/2016 (CIS No. 123/2016), whereby application for temporary
injunction filed by the plaintiff/respondent under Order 39 Rule 1
and 2 of CPC has been partly allowed and both parties have been
restrained to maintain status quo of the suit properties till disposal
of the suit.
The material facts which are necessary for disposal of this
Civil Misc. Appeal stated in brief are as under :-
The plaintiff/respondent No.1 (hereinafter referred to as "the
plaintiff") brought a suit for partition and permanent injunction
under Section 22 and 38 of the Specific Relief Act, against the
defendant/appellants (hereinafter referred as the "the
defendants") and the respondent No. 2 to 5, stating therein that
the plaintiff and the defendant No. 1 to 4 are legal representatives
of late Mangilal. Mangilal had two properties situated in Sikar.
One property is situated in Ward No. 26 new, Opposite Rajendra
Hospital, Rani Sati Road, Sikar and another property situated in
Ward No. 20, Opposite Kalyanji Temple, Sikar. After death of
Mangilal, all the parties became owner of 1/5, 1/5 share in these
properties. The defendant mother-Sita Devi and sister-Lalita Devi
executed a registered release deed in favour of the plaintiff on
[S.B. CMA - 6413/2016]
3
03/05/2011 and both of them surrendered their rights and share
in favour of the plaintiff, hence the plaintiff became owner of 3/5
share and the appellants remained with 1/5, 1/5 share in these
properties. Along with the civil suit, the plaintiff filed an
application under Order 39 Rule 1 and 2 read with Section 151 of
CPC for restraining the defendants from interfering in his
possession and to change condition of the disputed properties,
and not to sale, mortgage or alienate the property to anyone.
The defendant/appellants filed their separate replies of the
application for temporary injunction and denied the material
averments of the plaint, and stated that their father Mangilal
himself executed a family settlement in the year 1997 i.e. on
31/07/1997 and divided the property among all the three
brothers, and all of them signed the document of family
settlement. Defendants also pleaded that on 02/08/2010, an
amended family settlement was executed by all the three brothers
with mutual consent, in presence of their mother Sita Devi and
maternal uncle Dindayal, and the property was divided in two
parts and 5 feet wide place was left in the mid, for use as common
way. Eastern portion came in the share of the plaintiff and
western portion came in the share of the defendant/appellants No.
1 & 2. The plaintiff is having 50% share and the
defendant/appellants No. 1 & 2 are having 50% share in this
property. As the property No. 1 is costly and the plaintiff got 50%
portion in the property mentioned in para 3 (Ka), therefore, the
plaintiff released his share in the property mentioned in para 3
[S.B. CMA - 6413/2016]
4
(Kha) in favour of the defendant/appellants No. 1 & 2. It is also
pleaded that after execution of amended family settlement, all the
parties started using their share and constructed shop and started
their business. It is further pleaded that if subsequently, release
deed is executed in favour of the plaintiff, then also it will not
affect the rights of the parties, and it should be read in favour of
the defendant/appellants also. It is also pleaded that the
defendant No. 2 Pramod Kumar started construction on the first
floor of his share and the construction was on full swing. Later on,
ill intention developed in the mind of the plaintiff, and in order to
grab the share of his two brothers, the plaintiff has filed this suit
for partition and injunction along with application for temporary
injunction, and the defendants prayed to dismiss the application
for temporary injunction filed by the plaintiff.
After hearing learned counsel for the parties, the learned
trial Court partly allowed the application for temporary injunction
and restrained both the parties to maintain status quo of the
disputed properties, till disposal of the suit.
Being aggrieved by the impugned order passed by the
learned trial Court, the defendant/appellants have preferred this
appeal.
Learned counsel for the appellants contended that the
plaintiff has concealed the material fact of family settlement took
place among the parties. The plaintiff did not deny execution of
the family settlement dated 31/07/1997 and amended settlement
dated 02/08/2010, thus, he did not dispute the genuineness of
[S.B. CMA - 6413/2016]
5
these documents and the signatures of the parties thereon. The
plaintiff and the mother Smt. Sita Devi (respondent No. 2) were
well aware of these documents executed in the year 1997 and
2010.
Learned counsel for the appellants also contended that the
defendant/appellant No. 2 was raising construction on the house
and shop of his share and construction was on full swing. The
defendant/appellant No. 2 furnished an undertaking before the
learned trial Court that he be allowed to complete the construction
work, and he would remove the same at his own cost, if the suit is
decided against him, and he would not claim any right or equity,
but the learned trial Court did not consider the undertaking
furnished by the appellant and erroneously restrained him to
maintain status quo of the property, till disposal of the suit.
Learned counsel for the appellants further contended that a
coparcener may renounce his interest in the coparcenary property
in favour of other coparceners as a body, but not in favour of one
or more of them. If he renounces in favour of one or more of
them, the renunciation enures for the benefit of all other
coparceners and not for the sole benefit of the coparcener in
whose favour, the renunciation is made, and prayed to allow the
appeal, rejecting the application for temporary injunction in toto,
and in alternative prayed to allow the appellant to complete the
construction work at their own cost, subject to furnishing
undertaking that the appellant would remove the same, if the suit
is decided against them. In support of his contentions, learned
[S.B. CMA - 6413/2016]
6
counsel for the appellants placed reliance on :-
1. Order passed by Coordinate Bench on 11/12/2013 in SB
CMA No. 3645/2011 Mushtkeem & Ors. versus Arun
Kumar Jhunjhunwala (deceased) & Ors.
2. AIR 2003 AP 498
M. Krishna Rao & Anr. Vs. M. L. Narasikha Rao & Ors.
3. AIR 1987 SC 1775
Thamma Venkata Subbamma (dead) By.... Vs.
Thamma Rattamma & Ors.
Per contra, learned counsel for the respondents opposed the
contentions of learned counsel for the appellants and supported
the impugned order passed by the learned trial Court, contending
that Mangilal died in the year 2008, therefore, the properties left
by him, have to be partitioned under Section 8 of the Hindu
Succession Act 1956, and not under Section 6 of the Act. Learned
counsel also contended that defendant mother Sita Devi and sister
Lalita Devi executed registered release deed in favour of the
plaintiff on 03/05/2011 and surrendered their rights and share in
favour of the plaintiff, therefore, the plaintiff became owner of 3/5
share in the properties left by Mangilal. Thus, the learned trial
Court rightly restrained the defendant/appellants to maintain
status quo of the suit properties till disposal of the suit, and
prayed to dismiss the appeal being devoid of any substance. In
support of his contentions, learned counsel for the respondents
placed reliance on :_
1. 2003 (2) WLN 332 [S.B. CMA - 6413/2016] 7 Ramanlal Vs. Smt. Heeramani & Ors.
3. (1992) 109 CTR (SC) 317 Commissioner of Income Tax Vs. P. L. Karuppan Chettiar
4. AIR 2016 Rajasthan 198 Bhanwari Devi Vs. Arvind Kumar & Ors.
5. AIR 2005 SC 104 Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass
6. RLW 1988 (2) 262 Peer Gulam Naseer versus Peer Gulam Jelanee (67) I have considered the rival contentions of learned counsel for the parties and perused the material made available on record as well as relevant legal provisions and the case law cited by learned counsel for the parties. Following substantial questions of law and facts are involved in this case :-
(a) Whether partition of the property in dispute, already took place, and Mangilal himself executed a family settlement in the year 1997?
(b) Whether an amended family settlement was executed by the plaintiff and defendant/appellants on 02/08/2010? If so, [S.B. CMA - 6413/2016] 8 what is the effect thereof?
(c) Whether share of the plaintiff has increased accordingly, after execution of the release deed by the defendant No. 3 & 4 in favour of the plaintiff, or whether the renunciation enures for the benefit of all the three brothers and not for the sole benefit of the plaintiff, in whose favour the renunciation was made?
which can be decided only after recording evidence of both the parties to the suit.
To us, if at this stage, the appellants are permitted to raise any construction on the property in dispute and are allowed to change the nature of the property and ultimately after the suit filed by the plaintiff is decreed, then in such circumstances the relief sought by the plaintiff would become virtually infructuous. Furthermore, if the status quo of the suit property is maintained till final adjudication of the suit, no such irreparable loss would cause to the appellants. It is well settled position of law that courts should not decide the controversy finally, while deciding the temporary injunction application.
In Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass (supra), the appellant filed a civil suit for possession with an application for temporary injunction restraining the respondent from alienating the suit property and putting up any construction thereon. Learned trial Court granted an order of temporary injunction, as prayed for. The appeal filed by the respondent before the learned District Judge, was allowed holding [S.B. CMA - 6413/2016] 9 that the alienation made, if any, will be subject to the law of lis pendens and construction, if any, put by the respondent will have to be removed at his own risk and cost in the event of the suit being decreed. Revision filed against the said order, came to be dismissed by the High Court vide impugned order, which was assailed before Hon'ble Apex Court. Hon'ble Apex Court in Para 10 of it's judgment observed as under:
10. Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of the case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done.
In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored.
[S.B. CMA - 6413/2016] 10 Due to change in facts and circumstances of the case, the judgments cited by learned counsel for appellants, are not of much help to the appellants, at this stage.
In view of above, the impugned order passed by the learned trial Court is in consonance with the settled legal principles, and it does not call for our interference, at this stage. We find no merit in the appeal.
Consequently, the appeal is dismissed with no order as to costs.
(DINESH CHANDRA SOMANI)J. Manish/