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2001 DIGILAW 1045 (RAJ)

Madan Lal v. Nemi Chand

2001-07-09

PRAKASH TATIA

body2001
Honble TATIA, J.–Learned counsel Sh.A.K. Khatri is appearing on behalf of respondents No.3 and 4 and learned counsel Sh.Rajendra Dadhich is appearing on behalf of respondents No.1 and 2, therefore, service is complete. (2). With the consent of both the parties the appeal is decided after hearing learned counsel for the appellants as well as respondents. (3). In this case the appellants have challenged the order of the trial dated 5.1.2001 by which the trial Court passed by order that during pendency of the suit no mutation shall be effected and the status-quo shall be maintained with respect to the registration of the disputed land and with respect to the revenue record. (4). Learned counsel for the appellants admitted that the mutation does not create or relinquish any right, title or interest in the property but according to learned counsel for the appellant because of the present injunction despite the fact that appellant is owner... the registered sale deed in his favour he not be able to get the mutation order in his favour and the entries in the revenue record will not be made. Which will deprive the appellant from getting even loan from any institution, that too, only because of absence of entries in the revenue record. According to learned counsel for the appellant this will cause irreparable injury of the appellants. (5). Learned counsel for the appellant strongly relied upon the judgment of the Apex Court delivered in Dalpat Kumar & Anr. vs. Prahlad Singh & Ors. (1). I perused the judgment of the Honble Apex Court. The facts of the above case are having no relevancy to the present case, in the case of Dalpat Kumar & Anr. (supra) the Apex Court observed as under:- ``At present there is a sale deed executed by the Court in favour of the first appellant. If ultimately the respondent succeeds at the trial, they can be adequately compensated by awarding damages for use and occupation from the date of dispossession till date of restitution. Repeatedly the civil Court and the High Court refused injunction pending proceedings. For any acts of damage, if attempted to be made, to the propriety, or done, appropriate direction could be taken in the suit. If any alienation is made, it would be subject to doctrine of list penders under Section 52 of the Transfer of Property act. Repeatedly the civil Court and the High Court refused injunction pending proceedings. For any acts of damage, if attempted to be made, to the propriety, or done, appropriate direction could be taken in the suit. If any alienation is made, it would be subject to doctrine of list penders under Section 52 of the Transfer of Property act. The High Court without adverting to any of these material circumstances held that balance of convenience lies in favour of granting injunction with the following observations. ``Keeping in mind the history, various facts which have been brought to my notice, and looking to he balance of convenience and irreparable loss. I think it will be in the interests of justice to allow these appeals and grant temporary injunction that the appellants may not be dispossessed from the suit property. ``The phrases prima facie case, balance of convenience and irreparable loss are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by mens ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts are eloquent and speak for themselves. It is well high impossible to find from facts prima facie case and balance of convenience. The respondents can be adequately compensated on their success. (6). In the above cases, the facts are narrated, which are relevant to be quoted here. ``This is fourth round of litigation relating to the same subject matter. On June 14, 1979 the first appellant claimed to have entered into an agreement to purchase the residential house situated in Jaipur for a consideration of Rs.51,000/-. He laid the suit for specific performance and the suit was decreed ex- parte. On August 10, 1983, the sale deed was executed through court. On April 28, 1984, the respondentss wife filed suit No.83 of 1984 and also sought for temporary, injunction from dispossession. In May, 1984, the trial Court rejected the application for ad-interim injunction which was confirmed, on appeal, by the High Court on July 14, 1987. Thereafter, the suit was got dismissed for non-prosecution. The first appellant filed Execution Application No.6 of the 1985 in which the respondents filed five unsuccessful objections. The first was dismissed on March 4, 1987. In May, 1984, the trial Court rejected the application for ad-interim injunction which was confirmed, on appeal, by the High Court on July 14, 1987. Thereafter, the suit was got dismissed for non-prosecution. The first appellant filed Execution Application No.6 of the 1985 in which the respondents filed five unsuccessful objections. The first was dismissed on March 4, 1987. Thus the second one on December 4, 1987, which was confirmed on revision by the High Court on January 20, 1988. The third one on October 4, 1987 and fourth one on January 17, 1989. Even thereafter fifth objection was filed on May 23, 1989 which was dismissed on October 24, 1989. This was also confirmed by the High Court in Civil Revision No.109 of 1990 dated August 7, 1990. The third round of litigation was started at the behest of his sons in O.S. No.278 of 1988 claiming to be joint family property and for a declaration that the sale does not bind them and they sought for partition. They also sought for ad-interim injunction which was rejected on July 7, 1988. On appeal, the High Court in Misc. Appeal No.177 of 1988 confirmed it by he order dated July 26, 1988. The fourth round of litigation was started by the respondents in filing the present suit on December 7, 1988 pleading, that the first appellant being his counsel played fraud on him, in paragraphs 9 and 10, the details of which are not material for the purpose of this case. He also sought for an interim injunction from dispossession. In the meanwhile a part of the property, namely, shops were obtained symbolical possession by the first appellant. The trial Court by order dated November 3, 1990 dismissed the application. On appeal, the High Court in Misc. Appeal Nos. 498 of 1990 and 501 of 1990 by the impugned order dated February 26, 1991 allowed the applications and granted ad-interim injunction restraining the appellants from taking possession of the residential portion.` (7). From the facts of the above case it is clear that the injunction order was granted by the trial Court as well as by the High Court and retrained the appellant from taking possession of the residential portion. (8). From the facts of the above case it is clear that the injunction order was granted by the trial Court as well as by the High Court and retrained the appellant from taking possession of the residential portion. (8). Here in this case, it is not even submitted by the learned counsel for the appellants that their any right of enjoyment has been effected with respect to the actual user of the property in dispute. Here in this case if entries are altered in the revenue record during the pendency of the suit that will be naturally again changed in case the decision is given in the suit otherwise that will only be a repetition of the process of the revenue authorities depending upon the decision of the suit. So far as permission to create change over the property by obtaining loan order mortgaging the property during pendency of suit normally cannot be permitted and, therefore, the order passed by the learned trial Court is just and proper and is in interest of both the parties and also it will avoid multiplicity of the proceedings. (9). Hence, there is no force in this appeal and the same is hereby dismissed.