Rajasthan High Court - Jaipur
Smt. Lad Kanwar vs . Shri Ladu & Ors. on 17 January, 2015
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR
JUDGMENT
Smt. Lad Kanwar Vs. Shri Ladu & Ors.
S. B. Civil Misc. Appeal No.20/2015
Date of Judgment: 17th January,2015
P R E S E N T
HON'BLE MR. JUSTICE ATUL KUMAR JAIN
Mr. M.C. Jain, for the appellant.
Mr. Ramesh Kumawat, for respondent.No.10
BY THE COURT
` In this matter, Smt. Lad Kanwar and respondent No.10 Chhajuram are the only contesting parties. Names of respondents Nos. 1 to 9 were deleted at the request of learned counsel for the appellant. In this civil misc. appeal, the appellant has challenged the order dated 26.11.2014, which was passed in Civil Misc. File No.31/2014 relating to Civil Suit No.37/2014(505/2014) by Addl. District Judge No.9, Jaipur Metro, Jaipur. By the impugned order, the learned trial court has dismissed the prayer for temporary injunction filed by Smt. Lad Kanwar against Ladu and others.
2. I have heard arguments of both the parties. It has been argued by the appellant that she was entitled to her share in the joint property of Hari Singh(father of Lad Kanwar), Jwala Singh and Nathu Singh, but Nathu Singh claiming to be the sole owner of the suit property had sold the suit property in the year 1967 to ancestors of respondents Nos. 1 to 4 and then respondents Nos. 1 to 4 further sold the suit property in the year 1999 on 21.8.1999 to ancestors of respondents Nos. 5 to 9 and then in the year 2012 on 23.7.2012 respondents Nos. 5 to 7 have further sold the suit property to respondent No.10. Suit for cancellation of those sale deeds has been filed by Smt. Lad Kanwar in the trial court and she wants that till the decision of Civil Suit No.505/2014. Suit property could not be allowed to be further sold to any other person otherwise complicacy will arise and it has also been prayed that a prima facie case exists in favour of the appellant. In support of the arguments appellant had submitted jamabandi Khatauni for Samvat Year 2037 to 2041 and also Khatauni Bandowast for Samvat Year 2010 to 2023 and Khasra Parivartansheel also for that period before the lower court. It has been argued that in all these documents Nathu Singh, Hari Singh and Jwala Singh sons of Sheo Sahai Singh Rao resident of Devpuria were mentioned as Kastkar. It has also been brought to the notice of this Court that Hari Singh expired on 3.3.2006 and Smt. Mooli Kanwar widow of Hari Singh also expired on 14.1.2012. Lad Kanwar and respondents Nos. 12 to 16 are legal representatives of late Hari Singh. On that basis Smt. Lad Kanwar has prayed in this appeal that temporary injunction should be passed in her favour against respondent No.10 so that respondent No.10 may not further alienate the suit property, which is agricultural land situated in Village Dalpura Tehsil, Amer, District, Jaipur.
3. On the other hand, respondent No.10 claims to be bona fide purchaser of the suit property. It has been argued on his behalf that the suit property was sold by registered sale deed for the first time in the year 1967 on 7.6.1967. It has been argued that after 40-45 years the appellant has challenged the said sale deeds and so she cannot be given any relief. It has further been argued that amended Sections 6 & 8 of the Hindu Succession Act, 1956 cannot be given retrospective application to succession which had already been opened before the Amendment Act came into force.
4. The appellant relies upon the following rulings:-
(i) M/s Toyal Bros. Vs. Gram Panchayat Chicharwari 1988 (1) RLR 850
(ii) Rajeshwer Shankar Choudhary @ Rajesh Choudhary & Anr. 2013 WLC (Raj.) UC 556
(iii) Mohd. Sadiq & Ors. Vs. Abida & Ors. 2010(3) DNJ (Raj.) 1274
(iv) Kamal Kumar Vs. Bheru Bux & Ors. 2011 WLC (Raj.) UC 442
5. In the aforesaid rulings ingredients of a prima facie case have been elaborated, in one case application for temporary injunction was dismissed but still the defendant was directed by the High Court that he will not be allowed to transfer the suit property during the pendency of the suit. It was held in that case, if the parties are not directed to maintain status quo regarding alienation of suit property then it will create unnecessary complications and it may multiply the proceedings.
6. Respondent No.10 has relied upon following rulings:-
(i) Vallabh Darshan Hotel Pvt. Ltd. & Anr. Vs. State of Rajasthan & Ors. 2007 (2) DNJ (Raj.) 940. In this case there was no prima facie case in favour of the respondent and the suit for cancellation of sale deed was filed by the respondent in the trial court after lapse of four years of execution of sale deed and in such circumstances, it was held that temporary injunction should not have been given to the plaintiff-respondent.
(ii) Sheela Devi & Ors. Vs. Lal Chand & Anr. 2007 (1) WLC SC 157. In this case it was held that the parliament has conferred rights upon the female heirs even in relation to joint family property by amending Hindu Succession Act. It was further held that if the succession has already opened in 1989 then the provisions of the Amendment Act would have no application.
(iii) Surendra Bhatia Vs. Poonam Bhatia & Ors. 2006(1) WLC (Raj.) 648. In this case, it was held that married daughter cannot claim succession to ancestral property. The case was decided on 22.11.2005 in D.B. Special Appeal by the High Court.
(iv) Gulab Vs. Board of Revenue & Ors. (2006 (2) WLC (Raj.) 463. In this case, it was held that a widow after remarriage will have no right to land belonging to her former husband. It was further held that a married daughter has no right in ancestral prooperty of her father. This case was also decided on 1.2.2006.
7. It has been argued by the respondent No.10 that suit of Lad Kanwar was barred by limitation and further she is estopped to make any challenge to registered sale deeds after death of her father because her father Hari Singh did not think it fit to challenge the said transactions in his life time.
8. After hearing arguments of both the parties and after perusal of the documents referred by the parties during the arguments I am of the view that because of inordinate delay appellant may or may not have a prima facie case in her favour in strict sense of the term, but she is entitled to get a quick decision in her suit in which she has prayed for cancellation of three sale deeds. As per Section 52 of the Transfer of Property Act, respondent No.10, though he may be a bona fide purchaser, shall not be entitled to alienate the suit property without permission of this Court because the proceedings in the trial court are not collusive and in those proceedings right to the suit property is directly and specifically in question.
9. In the circumstances of the case and after following the logic given in Rajeshwer Shankar Choudhary's case (supra), I am of the view that even if the trial court was not entitled to accept the application of Smt. Lad Kanwar under general provisions of Order 39 Rule 1 or Rule 2 of CPC, but it should have restrained the respondent No.10 from making further alienation of the suit property because if the respondent No.10 is allowed to transfer the suit property during the pendency of the suit then it will create so many complications and it would cause inconvenience to the court also to decide the suit by an early date.
10. Hence, appeal of Smt. Lad Kanwar is hereby accepted to the extent that she may or may not have a prima facie case in her favour in strict sense of the term, but she is enitled to restrain the respondent No.10 from making further alienation of the suit property till the disposal of the suit, as per the provisions of Section 52 of the T.P. Act because doctrine of lis pendens applies to the matter and hence the respondent No.10 is hereby restrained and now he will not be entitled to alienate or transfer the suit property without written permission of this Court. This restriction will apply till the decision of the Civil Suit No.37/2014(505/2014) by the trial court. The trial court is also hereby directed to expeditiously decide the said suit by its best efforts.
(ATULKUMAR JAIN),J BKS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
B.K. SHRIVASTAVA PRIVATE SECRETARY