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2006 DIGILAW 3196 (PNJ)

Naresh v. Babu Lal

2006-08-07

VINOD K.SHARMA

body2006
JUDGMENT Vinod K. Sharma, J. - The present revision petition has been filed against the order dated 10.3.2005 passed by the Additional District Judge, Rewari, vide which the application filed by the plaintiff-petitioners herein under Order 39 Rules 1 and 2 of the CPC was dismissed. 2. The petitioners herein filed a suit for declaration that they were owners in possession of the suit property as per jamabandi for the year 1998-99. It was claimed that defendant No. 4 wanted to alienate the share of the plaintiffs on the pretext of gift deed and it was averred that if defendant No. 4 succeeded to alienate the property and interfere in their possession in the suit land, they would suffer an irreparable loss and injury. 3. The trial Court came to the conclusion that possession of the plaintiffs was proved on the basis of the report of the Local Commissioner and also took note of the fact that the property was admitted to be joint Hindu Family property and, therefore, restrained the defendant-respondents from alienating the property during the pendency of the suit. 4. In appeal, the learned lower Appellate Court on appreciation of documentary evidence came to the conclusion that Suraj Mal son of Girdhari was the owner in possession of the suit property. It also recorded a finding that there were no averments on the part of the plaintiffs that the suit land was purchased from any joint fund of joint Hindu Family and, therefore, the finding of the learned trial Court that the property was ancestral was found to be erroneous. The learned lower Appellate court further came to the conclusion that even if the property is assumed coparcenary in nature, Shri Suraj Mal being a Karta of the family could not be restrained from alienating the same and for this purpose it relied upon the judgments of this Court in the case of Jujhar Singh v. Tarlok Singh, 1986 PLJ 346 and Lal Dass v. Raghubir Dass, AIR 2004 P&H 41. The learned lower Appellate Court also took note of the fact that no injunction can be granted against the true owner. Therefore, in view of these findings, the appeal was accepted. 5. The learned counsel for the petitioners contended that the gift deed in favour of defendant No. 4 could not be accepted as it was qua the coparcenary property. The learned lower Appellate Court also took note of the fact that no injunction can be granted against the true owner. Therefore, in view of these findings, the appeal was accepted. 5. The learned counsel for the petitioners contended that the gift deed in favour of defendant No. 4 could not be accepted as it was qua the coparcenary property. The next contention of the learned counsel was that the findings recorded by the lower Appellate Court were contrary to the record. However, I find no force in the contentions raised by the learned counsel for the petitioners. The learned lower Appellate Court rightly came to the conclusion that even if for the sake of arguments the suit property is treated as coparcenary property, still Karta of the family cannot be restrained from alienating the same. This finding is in accordance with the settled law that the right to challenge the alienation of coparcenary property is available only after the sale is complete and no injunction can be granted. Therefore, finding no merit in the present revision petition, the same is dismissed. Petition dismissed.