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2002 DIGILAW 1 (MP)

GANGABAI, TARACHAN v. SHOBHANLAL, GYANLAL

2002-01-02

S.P.KHARE

body2002
S. P. KHARE, J. ( 1 ) THIS is a revision by the defendants against the order by which plaintiff shobhanlal's appeal under Order 43, Rule 1 (r), civil Procedure Code has been allowed and they have been restrained from interfering with his possession on the lands in dispute and from alienating these lands to any other person. ( 2 ) GAJANLAL and Tejanlal were brothers and they were holding 14. 99 acres of lands in village Khutia, Tehsil and District Balaghat: tejanlal had half share in these lands and that came to 7. 49 acres. He died, Kamabai was his widow and defendant No. 1 Gangabai is his daughter. Plaintiff Shobhanlal is son of Gajanlal shobhanlal and Kamabai instituted Civil Suit no. 288-A of 1986 in the Court of III Civil judge, Class II, Balaghat against Gangabai and three other persons. That was contested by the defendants. It was decided by the judgment dated 29. 4. 1989. A certified copy of that judgment is on record. It was held in that civil suit that Tejanlal had died in the year 1954-55, that is, before the Hindu Succession Act, 1956 came into force, his daughter Gangabai was not his heir, the lands left by Tejanlal were inherited by his widow Kamabai ; she became absolute owner of these lands, she executed registered gift deed dated 11-1-1961 marked ex; P-1 in that civil suit in favour of her nephew shobhanlal in respect of 7. 49 acres of land left by Tejanlal, and the recording of the name of Gangabai by the Naib Tehsildar by order dated 24-4-1984 is invalid. After recording these findings it was declared that the said order of the Naib Tehsildar is ineffective and gangabai has no right or share in the lands in dispute left by her father. She was restrained from interfering with the possession of the plaintiff on these lands by the decree of per-petual injunction. Para 3 of the decree reads ( 3 ) KAMABAI died on 15-4-1999, After her death the name of her daughter Gangabai has again been mutated by the Revenue Court in place of her mother by order dated 19. 5. 1999 and she is claiming partition of the lands. She is intending to transfer the lands in dispute shown in annexure 'a' to the plaint to other persons. 5. 1999 and she is claiming partition of the lands. She is intending to transfer the lands in dispute shown in annexure 'a' to the plaint to other persons. Therefore, the present suit has been filed for declaration that the said mutation and partition at the instance of Gangabai are void and for injunction for restraining the defendants from interfering with the possession of the plaintiff on these lands and from transferring any portion of these lands to anyone. In this Civil Suit the application for temporary injunction has also been filed. ( 4 ) THE case of the defendants is that plaintiff Shobhanlal got the registered gift- deed executed from Kamabai by undue influence and fraud. Gangabai being the heir of her mother is entitled to the lands left by her, therefore, her name has been rightly mutated in place of her mother. There has been a partition through the Revenue Court on 13-11-2000 and Khasra nos. 12,20,24, and 80/2 have been allotted to the share of Gangabai and she has been placed in possession thereof on 17. 11. 2000. The total area of these lands is 4. 96 acres. Gangabai has executed registered sale deed dated 1. 12. 2000 in favour of defendant No. 5 kusmabai in respect of Khasra No. 80/2 area 3. 04 acres. ( 5 ) THE trial Court by order dated 16-1-2001 held that plaintiff Shobhanlal has a prima facie case but there is no balance of convenience in his favour because of the partition effected by the Revenue Court. It was also held that the plaintiff would not suffer any irreparable injury and therefore the application for temporary injunction was rejected. ( 6 ) ON appeal by Shobhanlal it has been held by the Appellate Court that there is not only prima facie case in favour of the plaintiff but the other two ingredients for grant of temporary injunction are also in his favour because of the judgment and decree in Civil Suit No. 288 of 1986 referred above. The order of temporary injunction as stated at the outset has been issued in favour of the plaintiff and against the defendants. ( 7 ) THE learned counsel for both the sides have been heard in the revision. As stated above, it has already been adjudicated in Civil suit No. 288-A of 1986 by the judgment and decree dated 29. 4. ( 7 ) THE learned counsel for both the sides have been heard in the revision. As stated above, it has already been adjudicated in Civil suit No. 288-A of 1986 by the judgment and decree dated 29. 4. 1989, a certified copy of. which is on record, that Gangabai was not the heir of her father Tejanlal as he had died before the Hindu Succession Act, 1956 came into force. His widow Kamabai was his heir and she become absolute owner of the lands left by her husband in view of section 14 of this Act. It has also been clearly held in that civil suit that Kamabai has executed registered gift-deed dated 11. 1. 1961 marked Ex. P-1 in that civil suit in favour of plaintiff Shobhanlal. Kamabai was alive at that time and she had deposed in the court that she had executed this gift-deed in favour of his nephew shobhanlal. Gangabai was permanently restrained from interfering with the possession of the plaintiffs on these lands. In face of this decree of permanent injunction against gangabai the entire exercise of mutation and partition at her instance through revenue court is futile. The revenue court has not at all referred to this judgment and decree of the civil court and proceeded to partition the lands on the application of Gangabai. The power to issue permanent injunction is the most potent weapon in the armoury of the Civil Court. The plaintiff was armed with the decree of permanent injunction against Gangabai. It was already decided in the civil suit that Kamabai has gifted the lands in dispute to Shobhanlal by registered gift-deed and the decision in that civil suit on this point would operate as res-judicata in the present suit between the same parties. The revenue Court could not proceed to partition the lands at the instance of gangabai and give her any share in these lands in face of the decree of permanent injunction subsisting against her. Therefore, Gangabai or her transferee does not prima facie have any right or title in the lands in dispute. The partition effected through the Revenue Court is prima facie invalid in the eye of law. The decree of permanent injunction against gangabai passed in the earlier suit must prevail over the order of partition of the revenue court. The decree of prohibitory perpetual injunction does not require any execution. The partition effected through the Revenue Court is prima facie invalid in the eye of law. The decree of permanent injunction against gangabai passed in the earlier suit must prevail over the order of partition of the revenue court. The decree of prohibitory perpetual injunction does not require any execution. It becomes operative the moment it is passed and continues to remain in force. Such a decree is not subject to any period of limitation as provided in the proviso to Article 136 of the Limitation Act, 1963. The Appellate Court has rightly held that all the three ingredients for grant of temporary injunction are in favour of the plaintiff. ( 8 ) IN the result the revision is dismissed. The order passed by the appellate Court restraining the defendants from interfering with the possession of the plaintiff on the lands in dispute is confirmed. Revision dismissed. .