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2004 DIGILAW 3 (JK)

Joginder Nath v. Sudershan Kumar

2004-01-30

S.K.GUPTA

body2004
This appeal is directed against the order dated 22nd October, 2003 propounded by learned Additional District Judge, Jammu, whereby the application of the appellant/plaintiff for temporary injunction was ordered to be dismissed on the presentation of an undertaking by the respondents/defendants that in case any change is made in the suit property after order of this Court, the same shall be dismantled/removed by them at their own expenses, if they failed in the suit after the trial of the same. 2. It appears that in a suit for partition by metes and bounds of the property explicitly delineated in the schedule of plaint and for possession to the extent of 1/4th share in the said property, commenced by the appellant/plaintiff, an application supported by an affidavit also came to be initiated for the grant of ad interim injunction in invoking the provisions of Order 39 Rules 1 and 2 read with Section 151 of the CPC, in restraining the defendants/non-applicants from executing deeds of transfer of the proportion of the household and defendant No.1 from raising any construction over the said portion of the suit property consisting of Quarter Nos220/221, Rehari Colony, Jammu. While issuing a notice, at the first instance, the Trial Court, considering the case one of emergent nature, dispensed with the requirement of notice under Order 39 Rule 3 and directed the parties to maintain status quo on spot vide order dated 7-1-2002. The case of the appellant/plaintiff as projected in the suit is that Shri Lakhmi Dass, father of the parties, was the head of the family and after having displaced from Tehsil Kotli, District Mirpur, was allotted Quarters No.220 and 221, Rehari Colony, Jammu. These houses were allotted to the displaced family, of which Lakhmi Dass was father and head of the family. Lakhmi Dass died on 19-8-1972 and after his death, Smt. Bhagwanti, their mother, with the consent of other members of the family became the head of the family and succeeded to the property allotted to her late husband, Shri Lakhmi Dass, migrant. It is further stated that the quarters were allotted to the family as a whole as a measure of rehabilitation with elder member as head of the family to represent the family. It is further stated that the quarters were allotted to the family as a whole as a measure of rehabilitation with elder member as head of the family to represent the family. It is further averred by the appellant/plaintiff that the allotment of the quarters was to the whole family and not to the head of the family in his individual capacity. The allotment of single or double quarter was passed on the strength of the family. It is stated that respondent/defendant No.1 started digging foundation on a particular portion of the house for raising construction thereon and when objected to by the appellant/plaintiff, defendant/respondents-2 refused to acknowledge the right of the ownership of the appellant/plaintiff and further threatened to transfer the portion of the house to defendants No.1 and 2 by executing gift deeds. The denial of the right of the ownership of the appellant to the portion of the house allotted to the family by the Rehabilitation Department, by the defendants/respondents occasioned the appellant/plaintiff a cause of action to commence the suit for partition by metes and bounds. 3. The respondents/defendants, on the other hand, in their disclaimer refuted the contention of the appellant/plaintiff and stated to be within their right being the sole owner in possession of quarter Nos. 220 and 221 in pursuance of a gift deed executed in their favour by defendant No. 3 and, thus, competent to make alteration or raise construction over any portion of the said property. That the appellant/plaintiff having no right or title over the property can neither maintain the suit for partition by metes and bounds claiming any share in the said property nor any prima facie case leans in his favour for the grant of temporary injunction. The Trial Court, after hearing the parties and perusing the record, dismissed the application of the appellant/plaintiff, provided the defendants/non-applicants submit an undertaking that in case any change is made to the suit property after the order of this Court, the same shall be dismantled or removed at their own expenses, if they do not succeed in their suit. 4. Mr. S.D. Sharma, learned counsel appearing for the appellant, submitted that the appellant/plaintiff is one of the members of the family of Lakhmi Dass. The suit property was allotted to the members of family with Lakhmi Dass, deceased, as head of the family. 4. Mr. S.D. Sharma, learned counsel appearing for the appellant, submitted that the appellant/plaintiff is one of the members of the family of Lakhmi Dass. The suit property was allotted to the members of family with Lakhmi Dass, deceased, as head of the family. That the appellant/plaintiff is in possession of one room in the suit property. That the appellant/plaintiff has an equal share in the suit property allotted to the family as per their strength by the competent authority, and in case the defendants/respondents are allowed to raise construction on a specified portion of the property, an irreparable loss would be occasioned to him. As is borne out from the record, respondent-3 succeeded to the property initially allotted to Lakhmi Dass, being his widow, with the consent of all the members of the family. She is stated to have gifted away a portion of the suit property by executing gift deeds before the Court of Sub-Registrar in favour of respondents-1, 2 and 4. These deeds have been executed much prior to the filing of the suit. 5. Mr. Inderjit Gupta, learned counsel appearing for the defendants/respondents, submitted that the appellant/plaintiff has represented himself to be a separate family for the purpose of allotment of property as migrant and got a land aggregating 32 kanals 9 marlas allotted at Moza Goverdhan Pass, District Rajouri, as is manifest from the attested true copy of the order of Tehsildar Rajouri, produced in the case. It is further stated that the said land is in the possession of the Defence Department for which an award of Rs.1,78,478/- has also been made in favour of the appellant/plaintiff. It is also asserted that the respondent/defendant-3, being the sole owner of the property, was fully competent and well within her right to transfer a portion of the house to defendants-1, 2 and 4 by executing gift deeds. Since the respondents/non-applicants are in possession of the respective portion of the suit property on the basis of a gift deed on which they are raising construction after digging the land and the appellant/plaintiff has yet to establish his right over the suit land. 6. Since the respondents/non-applicants are in possession of the respective portion of the suit property on the basis of a gift deed on which they are raising construction after digging the land and the appellant/plaintiff has yet to establish his right over the suit land. 6. In view of the fact alleged on the basis of the copy issued by the Tehsildar that the appellant/plaintiff, claiming to be a separate family, was allotted the land at Rajouri and after that an award has also been made in his favour, the appellant/plaintiff cannot be said to have succeeded in making out a case for grant of interim injunction before the Trial Court, particularly. That apart, the interest of the appellant/plaintiff has also been protected by the Trial Court in directing the respondents while dismissing the application on presentation of an application/undertaking by the defendants/respondents that in case any change is made in the suit property after the order of the Court, the same shall be removed or dismantled at their own expenses, in case they did not finally succeed in the suit. 7. An identical matter came up for consideration before the Kerala High Court in case entitled Thomas Ben v. Parvathy Ommini, AIR 1962 Kerala 16, and it was held as under: "....In the present case the undertaking that was given in the lower court appears to be an unconditional one to pull down and remove the building without raising any claim for compensation in case the plaintiffs were found entitled to recover possession of the property. In such a case the question of putting the defendant in an advantageous position vis--vis the plaintiff does not arise and the court is not called upon to decide whether it thinks fit to direct the pulling down of the building." 8. Again in case Bans Ropan and others v. IIIrd Addl. Distt. Judge, Ghazipur and another, AIR 1993 Allahabad 117, the Appellate Court allowed defendants to raise construction with undertaking that it would be demolished if their claim finally fails. It was held that order protects interest of both the sides and is just and correct one. 9. After perusing the record and relying on the ratio of the aforesaid decisions, I do not find any infirmity, legal or factual, in the order impugned propounded by the Trial Court inviting interference in appeal. It was held that order protects interest of both the sides and is just and correct one. 9. After perusing the record and relying on the ratio of the aforesaid decisions, I do not find any infirmity, legal or factual, in the order impugned propounded by the Trial Court inviting interference in appeal. In the result, I do not find any merit in this appeal and is, accordingly dismissed. However, any observation made hereinabove shall remain confined to the disposal of this appeal, having no bearing on the merits of the case. It will be open to the Trial Court to decide the matter on the basis of evidence and in accordance with law. In the peculiar circumstances, there will be no order as to costs.