Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 495 (MP)

Neeraj Darbari v. Manoj Shukla

2000-05-09

V.K.AGRAWAL

body2000
ORDER 1. Both the above appeals are directed against the common order dated 25.1.2000 in civil suit Nos. 4A of 2000 & No. 5-A/2000 by XII Additional District Judge, Jabalpur allowing the application under Order 39 Rules 1 & 2 CPC filed by plaintiff/respondent No. 1 and prohibiting the appellants of the above appeals from interfering in his possession over the suit-property. Since in both the appeals common questions of law and facts are involved and by the impugned-order, the application as above filed by the plaintiff/respondent No.1 in both the suits has been disposed of, this order shall govern disposal of both the appeals. 2. Plaintiff/ respondent No. 1 filed a suit for declaration that the sale-deed dated 4.1.2000 executed by defendant No. 1 Smt. Mayura Mishra who is respondent No.2 herein in favour of the appellant/defendant No.2 be declared invalid and ineffective and for direction to defendant No. 1 Smt. Mayura Mishra to execute the sale-deed of the suit-property in favour of the plaintiff/ respondent No.1 herein. 3. Undisputably, the plaintiff/respondent No.1 Manoj Shukla and defendant No.1 respondent No.2 Smt. Mayura Mishra are brother and sister. They are the children of late Rameshwar Shukla. Late Rameshwar Shukla held the suit-property bearing house No. 1106 South Civil Lines, Jabalpur. It is also not in dispute that he executed a will dated 22.3.1994. By the said will, portion of aforesaid House No. 1106 was bequeathed in favour of defendant No.1 Smt. Mayura Mishra, while the remaining portion was bequeathed in favour of plaintiff Manoj Shukla. It is also not in dispute that Late Rameshwar Shukla died on 13.10.1995. The defendant No. 1/Res. No.2 Smt. Mayura Mishra executed two sale-deeds dated 4.1.2000 regarding the share of the property received by her under the will of her father. The appellants in the above appeals are the purchasers of different portion of the said property, from defendant No.1/respondent No.2 Smt. Mayura Mishra. 4. The plaintiff/respondent No.1 challenged the alienation of the property as above by her sister Smt. Mayura Mishra in favour of the appellant. His claim in suit was based on the right of preemption given to him as well as to his sister, Smt. Mayura Mishra by the will dated 22.3.1994 executed by their father Late Rameshwar Shukla. 5. The plaintiff/respondent No.1 Manoj Shukla also filed an application under Order 39 Rules 1 & 2 CPC. His claim in suit was based on the right of preemption given to him as well as to his sister, Smt. Mayura Mishra by the will dated 22.3.1994 executed by their father Late Rameshwar Shukla. 5. The plaintiff/respondent No.1 Manoj Shukla also filed an application under Order 39 Rules 1 & 2 CPC. It was averred therein by him that he is in occupation of the suit-house. He has right, title and interest on the part thereof, as per the will dated 22.3.1994 executed by his father, Late Rameshwar Shukla. He further claimed that he had a right of pre-emption over the part of the property bequeathed in favour of his sister, defendant No.1/respondent No.2 Smt. Mayura Mishra. It was further averred that the sale in favour of the appellant by his sister, Smt. Mayura Mishra of the parts of the property was illegal and in violation of his right of pre-emption to purchase the property. It was also averred by the plaintiff that he being in actual possession of the suit property, has a right to retain the same. Since the purchasers and other persons, on their behalf are trying to disturb his possession, he prayed that the defendants and their agents may be restrained from dispossessing the plaintiff from the suit property. 6. The application for temporary injunction filed by the plaintiff/respondent No. 1 was resisted by the appellants. It was averred by them that the suit-property has been purchased by the appellants. There is no right of pre-emption in favour of the plaintiff/ respondent No. 1. The application for temporary injunction was misconceived and not tenable in law. They, therefore, prayed that it be dismissed. 7. The learned trial Court held that there was a prima facie case in favour of the plaintiff/respondent No.1. It has been observed by the trial Court in the impugned-order that the plaintiff/Res. No.1 prima facie appears to be in possession of the suit property from the time of his father, as he is residing therein. His sister, Smt. Mayura Mishra is residing with her sister, Smt. Malini Dubey at Bhopal. Therefore, she was not in actual occupation of the suit-property. It was also observed that balance of convenience is in favour of the plaintiff/respondent No. 1 and that he is likely to suffer irreparable loss, in case temporary injunction was not granted in his favour. His sister, Smt. Mayura Mishra is residing with her sister, Smt. Malini Dubey at Bhopal. Therefore, she was not in actual occupation of the suit-property. It was also observed that balance of convenience is in favour of the plaintiff/respondent No. 1 and that he is likely to suffer irreparable loss, in case temporary injunction was not granted in his favour. Accordingly, his application for temporary injunction was allowed with the condition that he shall furnish solvent surety for an amount of Rs. 25,000/- with his personal undertaking that in case of failure in the suit, he will compensate the appellant/defendant No.1. 8. The learned counsels for the appellants have urged that the learned trial Court erred in not considering that Smt. Mayura Mishra acquired title over the suit-property by virtue of the will dated 22.3.1994 of her father. She had a right to alienate the property. It has further been urged that by his notice-cum-letter dated 20.12.1999, the plaintiff/respondent No.1 only offered a price of Rs. 2.0 lakhs, which was much below the market price of the suit property. Therefore he could not avail of the right of pre-emption conferred by the will of his father In view of the above, the sale of the suit-property in favour of the appellants by Smt. Mayura Mishra was justified and conferred good title over the appellants. The appellants, therefore, were entitled to obtain possession of the suit-property and the plaintiff/respondent No.1 could not obstruct them from doing so. It has also been submitted that in case the plaintiff/respondent No.1 succeeds in his suit, a decree for pre-emption would be granted in his favour as is provided under Order 20 Rule 14 CPC. Relying upon Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and others ( AIR 1960 SC 1368 ) it has also been urged that the right of pre-emption is a weak right and is not to be looked upon with favour. It has also been submitted that Courts ought not extend help to the pre-emptor. 9. As against the above, the learned counsel for the plaintiff/respondent No.1 has urged that the will of Late Rameshwar Shukla conferred right of pre-emption on either of the parties, i.e., the plaintiff respondent No.1 Manoj Shukla as well as on his sister, defendant No.1 respondent No.2 Smt. Mayura Mishra. 9. As against the above, the learned counsel for the plaintiff/respondent No.1 has urged that the will of Late Rameshwar Shukla conferred right of pre-emption on either of the parties, i.e., the plaintiff respondent No.1 Manoj Shukla as well as on his sister, defendant No.1 respondent No.2 Smt. Mayura Mishra. It has further been submitted that the right of pre-emption so conferred is sought to be exercised by the plaintiff/ respondent No.1. He is in actual physical possession of the suit-house. His sister Smt. Mayura Mishra is residing with their other sister, Smt. Malini Dubey at Bhopal. She is not in actual physical possession of the suit property. The share received by Smt. Mayura Mishra has been transferred by her in favour of the appellants without keeping in view the right of pre-emption, conferred on the plaintiff by the aforesaid will. It has further been submitted that the appellants, though claimed to be the purchasers of the parts of the property from Smt. Mayura Mishra, have not taken due care and caution and that they should have paid attention to the right of pre-emption to purchase the property by the plaintiff, before purchasing the property from Smt. Mayura Mishra. It has also been submitted that the plaintiff/respondent No. 1 has a right of privacy over the property bequeathed by the said will of his father. His right of privacy cannot be infringed by the purchasers in the above facts and circumstances of the case. It has, therefore, been submitted that the trial Court was justified in granting temporary injunction in his favour. 10. In view of the rival contentions as above, it has to be considered whether the prayer for temporary injunction by plaintiff/respondent No.1 Manoj Shukla was rightly accepted? 11. As noticed earlier, admittedly will dated 22.3.1994 was executed by the father of the plaintiff and defendant No.1 Smt. Mayura Mishra bequeathing his property in their favour. It is also not disputed that by the said will, a right of pre-emption was conferred on both the beneficiaries, i.e. on the plaintiff Manoj Shukla as well as his sister, defendant No.1 Smt. Mayura Mishra. It also appears that after the death of their father, the plaintiff/ respondent No.1 sent a notice-cum-letter dated 20.12.99 whereby he offered that he is willing to purchase the share of the property of Smt. Mayura Mishra for an amount of Rs. 2.0 lakhs. It also appears that after the death of their father, the plaintiff/ respondent No.1 sent a notice-cum-letter dated 20.12.99 whereby he offered that he is willing to purchase the share of the property of Smt. Mayura Mishra for an amount of Rs. 2.0 lakhs. It was further stated in the said notice that the property could not be sold to any stranger without being offered to him and that in case the plaintiff was not willing to pay the stated price, then only it could be sold by Smt. Mayura Mishra to a stranger. Despite the above letter-cum-notice, the property was sold immediately thereafter by the two sale-deeds dated 4.1.2000 in favour of the two appellants by Smt. Milyura Mishra. 12. It is, therefore, clear that the plaintiff/ respondent No.1 offered a tentative price of Rs. 2.0 lakhs for the share of Smt. Mayura Mishra in the property. He further stated in the said notice that he will be willing to consider purchase of the suit property for the price that may be stated by his sister. Obviously, his stand in the said notice appears to be that according to him, the price of the suit-property was Rs. 2.0 lakhs, but he was willing to consider the price that may be stated by his sister, Smt. Mayura Mishra. However, it does not appear that Smt. Mayura Mishra made any offer to his brother, plaintiff Manoj Shukla to purchase the property at the price which she considered to be reasonable or the market price. The learned counsel for the plaintiff/respondent No.1 has also pointed out that in the sale-deeds executed by Smt. Mayura Mishra in favour of the appellants no recital has been made to show that the appellants or their vendor. Smt. Mayura Mishra had taken any steps towards the offer of the suit-property to the plaintiff Manoj Shukla. It has therefore, been urged that the transaction between the appellants and the defendant No.1 Smt. Mayura Mishra was in total disregard to the right of pre emption conferred by the will of his father. 13. Smt. Mayura Mishra had taken any steps towards the offer of the suit-property to the plaintiff Manoj Shukla. It has therefore, been urged that the transaction between the appellants and the defendant No.1 Smt. Mayura Mishra was in total disregard to the right of pre emption conferred by the will of his father. 13. It has further been submitted by the learned counsel for the plaintiff/respondent No.1 that the plaintiff is residing in the suit-house, part of which has been sold to the appellants by his sister; Smt. Mayura Mishra and that the appellants are total strangers If they are permitted to occupy and take possession of the suit-property, it would not only be in derogation of his right of pre-emption, but it will also infringe his privacy in the suit-property. It has been submitted in the above context that the purchasers i.e., the appellants cannot occupy their property otherwise than infringing the right of privacy of the plaintiff in his portion of the house. It has been submitted that the right of privacy of the plaintiff is sacrosanct and cannot be permitted to be infringed by the appellants. 14. It is therefore, clear in the above circumstances that the plaintiff has a right to protect his right over the suit-property. It also appears that he has a substantial legal right in the suit-property and a serious question has been raised by him regarding his title and right of pre-emption Therefore, it appears that he has a prima facie case. 15. In Shankarlal Debiprasad Rathore v. State of MP and others ( 1978 JLJ 51 = 1978 MPLJ 419 ), it has been observed as below :- "Although it is often said that plaintiff must show a prima facie case in support of the right claimed by him in the suit before he can be granted temporary injunction, the real thing to be seen is only that plaintiff's claim is not frivolous or vexatious; in other words that there is a serious question to be tried. Plaintiff is not required to make out a clear legal title but has to satisfy the Court that he has a fair question to raise as to the legal right claimed by him in the suit. Plaintiff is not required to make out a clear legal title but has to satisfy the Court that he has a fair question to raise as to the legal right claimed by him in the suit. It is not the function of the Court at that stage to resolve disputed questions of fact or difficult questions of law which should be left to be decided at the conclusion of the trial" 16. As noticed earlier, in the instant case, the plaintiff has made out a litigable cause. It also appears that in case the appellants who are the strangers to the family are permitted to occupy the suit-property right of privacy of plaintiff shall be adversely affected. The infringement of his right of enjoyment of his property received by him under the Will would certainly amount to irreparable loss. In the above circumstances, it is also clear that the balance of convenience lies in favour of the plaintiff/respondent No.1. It may be mentioned that though the appellants are the purchasers of the suit-property from Smt. Mayura Mishra and it has been urged on their behalf that they have parted with valuable consideration for the purchase of the same however, it may be mentioned that had the appellants taken due care to consider the acquisition of the property of their vendor. Smt. Mayura Mishra under the Will of her father they would have come to know that the right of pre-emption existed in favour of the plaintiff/respondent No.1. In that case, they should have made enquiries as to whether adequate and proper steps were taken by their vendor, in regard to the said right. They do not appear to have done so. Therefore the contentions as raised above that they are entitled to possession of the suit-property as they have invested substantial amount towards purchase of the same cannot be accepted. 17. They do not appear to have done so. Therefore the contentions as raised above that they are entitled to possession of the suit-property as they have invested substantial amount towards purchase of the same cannot be accepted. 17. In the above circumstances, it is clear that the trial Court by applying proper test has allowed the application of the plaintiff/respondent and has granted temporary injunction in his favour In Wander Ltd. and another v. Antox India P. Ltd. [1990 (supp) SCC 727], it has been laid down that the appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. It has further been observed that the appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion. 18. In the instant case, not only the trial Court has taken relevant material for consideration and has applied proper test for grant of temporary injunction but has arrived at a correct conclusion. Thus the approach of the trial Court was reasonable and judicious. 19. In the foregoing circumstances, the impugned order granting injunction in favour of the plaintiff respondent calls for no interference. The appeal is without merit and is accordingly dismissed. Parties shall, however, bear their own costs of this appeal.