Rajasthan High Court - Jodhpur
Narenra Kumar vs Shyam Sunder & Anr on 3 December, 2012
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96
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.CIVIL MISC.APPEAL NO.2426/2012
Shri Narendra Kumar
Vs.
Shri Shyam Sunder & Anr.
Date of Judgment :: 03.12.2012
HON'BLE MS.JUSTICE NIRMALJIT KAUR
Mr.M.L.Chhangani, for the appellant.
Mr.M.S.Singhvi, Senior Advocate assisted by Mr.Arun Bhansali, for the respondent No.1 <><><> This is an appeal under Order 43 Rule 1(r) of C.P.C. against the order dated 10.10.2012 passed by Additional District Judge No.1, Jodhpur in Civil Misc. Case No.77/2012, vide which, the application for Temporary Injunction filed by the appellant-plaintiff was partly allowed qua the property i.e. Tulsi Bhawan and Narsingh Bhawan but rejected the same qua the agricultural land.
The appellant Narendra Kumar filed a suit for partition of joint Hindu Family Properties, rendition of accounts, mesne profits as well as sought injunction against the respondents qua the suit property mentioned in para 3 of the plaint. The property 'A' comprised of Tulsi Bhawan, property 'B' comprised of Narsingh Bhawan and property 'C' was with respect to the agricultural land in Kheme Ka Kuan. Along with the said suit, an application for interim injunction seeking status quo with respect to the suit 2 property was also filed. The trial court partially accepted the said application and directed the parties to maintain status quo with regard to Tusli Bhawan and Narsingh Bhawan i.e. Property 'A' and Property 'B' mentioned in para 3 of the plaint with further direction not to alienate the same to any other person. However, the said temporary injunction was refused qau property 'C' i.e. agricultural land situated in Kheme Ka Kuan. The said injunction qua the agricultural land was refused on the ground that the said land was the personal property of Shri Nand Kishore Agarwal i.e. the father of the appellant-plaintiff. The said land was purchased by Shri Nand Kishore Agarwal himself from the business, which was partitioned in the year 1962. Further, the said property was bequeathed to by way of Will to the respondents-defendants by Shri Nand Kishore Agarwal and further, the said land has already been surrendered to the Urban Improvement Trust, Jodhpur under Section 90-B of the Rajasthan Land Revenue Act for conversion of the use of land and the appellant-plaintiff did not raise any objection inspite of the public notice dated 2.6.1994 issued by the Urban Improvement Trust, Jodhpur.
Learned counsel for the appellant while impugning the said order submitted that Shri Nand Kishor Agarwal was the Karta of the joint Hindu Family. He had purchased the said agricultural land out of the nucleus of joint Hindu Family fund and also by disposing of other ancestral property. Therefore, the same was amenable to partition. Thus, Shri Nand Kishore Agarwal had no right to bequeath the agricultural land by Will. Secondly, there was every 3 likelihood of the respondents disposing of the property during the interim period, which would result in multiplicity of litigation and thus, the trial court erred in not passing the order for maintaining the status quo agricultural land.
The respondents have filed their reply to the application under Section Order 39 Rule 1 & 2 CPC read with Section 151 C.P.C.
Learned counsel for the respondents also submitted that the said property i.e. agricultural land had been purchased by Shri Nand Kishore Agarwal from his personal funds. Accordingly, the same was bequeathed by way of Will to respondent Shyam Sunder Agarwal, HUF through Karta Shyam Sunder Agarwal. The respondent Shyam Sunder Agarwal HUF has not been impleaded as party to the suit. Secondly, the various documents were produced by the respondents before the trial court to establish a prima face case in their favour and therefore, the trial court has rightly dismissed the application of the appellant-plaintiff. It was further contended that the land stands surrendered under Section 90-B of the Rajasthan Land Revenue Act for conversion of the use of land by way of 54 lease-deeds. Public notice dated 2.6.2004 was also published in the newspaper inviting objections but the appellant-plaintiff did not raise any objection at that stage. The said allottee was not a party to the suit. The suit was, therefore, not maintainable. It was further stated that huge sum has been invested for the land in question for its conversion as well as for 4 development; and after conversion, the lease-deed have been issued in favour of Shyam Sunder Agarwal HUF. A residential colony has been developed. Several residential flats have been alloted and sold by registered sale-deeds and their possession has also been handed over to various purchasers. It was further argued that the appellant-plaintiff had written a letter to one of his sisters, wherein, he specifically stated that he meant to raise the issue with respect to Tulsi Bhawan and Narsingh Bhawan, which belonged to Shri Nand Kishore Agarwal HUF. However, he made no mention of the said agricultural land in that letter. Further, even in the notice issued by the appellant before filing the suit, reference was made only qua the Property 'A' and Property 'B' mentioned in para 3 of the plaint i.e. Tulsi Bhawan and Narsingh Bhawan. Once again, Property 'C' i.e. the agricultural land situated in Kheme Ka Kuan has not been mentioned in the said notice. It was contended that the said property has come to the share of the respondents by way of Will. However, the said Will has not been challenged. Reliance was placed on the judgment rendered by Hon'ble the Apex Court in the case of Skyline Education Institute (India) Private Limited Vs. S.L.Vaswani & Anr., reported in (2010) 2 Supreme Court Cases 142 to contend that the scope of the appeal was limited and the appellate court should not interfere, if the discretion has been exercised by the trial court reasonably and in a judicial manner. Reliance was also placed on the judgment passed by this Court in S.B.Civil Misc. Appeal No.436/1993 (State of Rajasthan Vs. Smt.Uma Sanghi & Ors.), 5 decided on 02.09.1998 to contend that injunction during the pendency of the suit is uncalled for as the rights of the parties are protected by the doctrine of "lis pendens" in case of any transfer of property.
Learned counsel for the parties were heard at length. Learned counsel for the appellant relied on the judgments rendered in the cases of Chinnamma & Ors. Vs. N.Nagaraj & Ors., reported in AIR 1996 Karnataka 11; Ram Singh & Ors. Vs. Amra & Ors., reported in 1996 AIHC 3062; Nirmal Vs. Lakhpat Singh & Ors., reported in 2001 AIHC 3889; Narendra Singh Rajawat & Ors. Vs. Thakur Mohan Singh Kanota & Ors. Reported in AIR 2002 Rajasthan 218; Sukkha Singh & Anr. Vs. Mahal Singh & Anr., reported in AIR 2003 Rajasthan 21; Sudhakar Verma, Vs. Rakesh Kumar Arora, reported in AIR 2004 Delhi 369; Safi Khan Vs. Ibrahim Khan & Ors., reported in 2008(65) AIC 821 (Raj.,H.C.); Julien Educational Trust Vs. Sourendra Kumar Roy & Ors., reported in (2010)1 Supreme Court Cases 379; Mangalram & Ors. Vs. Sunil Kumar & Ors., reported in AIR 2011 Rajasthan 61; and A.Shanmugam Vs. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, represented by its President, reported in 2012 AIR SCW 3017, wherein it was held that parties should be directed to maintain status quo, in case, both the parties claim and counter-claim each other's property in a suit for partition. There is no dispute with the proposition of law as laid down in the judgments referred by the learned counsel for the appellant. At the same time, relief of temporary injunction depends 6 on the facts of each case, whereas, the facts narrated do not call for any interference in the impugned order under challenge.
Hon'ble the Apex Court in the case of Skyline Education Institute (India) Private Limited Vs. S.L. Vaswani & Anr. (supra) while relying on the judgment rendered by Hon'ble the Apex Court in the case of Ruston & Hornsby Ltd. Vs. Zamindara Engg. Co., reported in (1969) 2 SC 727 and in the case of N.R.Dongre Vs. Whirlpool Corpn., reported in (1996) 5 SCC 714 as well as on the judgment rendered in the case of Satyam Infoway Ltd. Vs. Sifynet Solutions (P) Ltd., reported in (2004) 6 SCC 145. held in para 22 as under:
"22. The ratio of the abovenoted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity."
Applying the test in the facts of the present case, there is no error of law apparent on the face of the record.
A perusal of the impugned order shows that various documents were produced by the respondents before the trial court. An agreement dated 8.6.1981 has been placed on record. This agreement has been signed by all the parties including the appellant. As per the said agreement, Narendra Kumar was given 7 plots No.61 & 62 and in exchange to release his rights in the remaining property to Shri Nand Kishore Agarwal and the respondents. Relinquish deeds have been placed on record to show that the same were executed in respect of plots No. 61 & 62 in favour of Narendra Kumar. Thereafter, sale-deeds also placed on record showing that plots No.61 & 62 and 2 flats in Narsingh Bhawan were sold by Narendra Kumar. Thus, Narendra Kumar duly acted upon the said agreement. Another document dated 31.12.1962 is the partial partition of the family business capital. The said document, too, appears to have been signed by the appellant Narendra Kumar Agarwal along with Shri Nand Kishore Agarwal, Surya Kumari and Shyam Sunder. The other documents are the sale-deeds dated 26.3.1965 and 2.9.1965, vide which, Shri Nand Kishore Agarwal bought the land in dispute from Shri Tara Chand and Shri Pokar. Thus, the disputed land is bought after the partition of family business. Thereafter, Shri Nand Kishore Agarwal had transferred the part of the agricultural land vide sale- deeds dated 19.10.1981 and 12.6.1989. The remaining land was further bequeathed to the respondent Shyam Sunder Agarwal HUF through Karta Shyam Sunder Agarwal vide Will dated 15.12.1998. On the basis of the said Will, the land was mutated in favour of the respondents. Thereafter, the respondents surrendered the land to the Urban Improvement Trust, Jodhpur for conversion of land under Section 90-B of the Rajasthan Land Revenue Act, for which, a public notice was also issued on 2.6.2004 by the Urban Improvement Trust, Jodhpur. The appellant 8 did not raise any objection at that stage. After 8 years of the same, the appellant-plaintiff filed the suit. Advance notice is stated to have been issued before filing the suit. In the notice, only Tulsi Bhawan i.e. the property 'A' and Narsingh Bhawan i.e. property 'B' are mentioned. It is stated that there is no mention of the agricultural land situated at Kheme Ka Kuan in the said notice. This fact is not disputed. Meaning thereby, the appellant-plaintiff knew from the very beginning that the said agricultural land was the personal property of Shri Nand Kishore. This fact is further corroborated from the letter dated 20.3.2012 addressed by appellant-plaintiff to his sister. The relevant part of the letter reads as under:-
"I wish to raise the issue that Tulsi Bhawan and Narsingh Bhawan belonged to Shri Nand Kishore Agarwal HUF and therefore, these properties to be distributed in ten equal shares i.e. Shri Nand Kishore Agarwal, Smt.Surya Kumari Agarwal, Narendra Kumar Agarwal (HUF), Shyam Sunder Agarwal (HUF) and all six sisters."
A perusal of the above letter shows that the agricultural land was left out probably because the appellant was always clear about the title of the land. In these circumstances, no fault can be found with the impugned order dated 10.10.2012 passed by the trial court, vide which, the parties have been ordered to maintain status quo with respect to the property i.e. Tulsi Bhawan and Narsingh Bhawan mentioned in para 3 of the plaint and injunction qau property 'C' i.e. agricultural land situated in Kheme Ka Kuan has been refused.
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Accordingly, this Court finds no reason to interfere in the impugned order. However, nothing said herein will have any bearing on the merits of the suit pending before the trial court. Dismissed accordingly.
(NIRMALJIT KAUR), J.
NK