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Madhya Pradesh High Court · body

2007 DIGILAW 793 (MP)

Raghunandan v. Krishna Bai

2007-07-25

SHANTANU KEMKAR

body2007
ORDER 1. By this petition, filed under Article 227 of the Constitution of India the petitioner/plaintiff has challenged the order dated 8.3.2007 passed by the VI Additional District Judge, Bhopal in Miscellaneous Civil Appeal No. 45/07 setting aside the order dated 31.1.2007 passed by the IV Civil Judge, Class I, Bhopal in Civil Suit No. 380-A/06 granting temporary injunction in favour of the plaintiff/petitioner. 2. The petitioner/plaintiff filed a civil suit for injunction and declaration against the respondents/defendants. As per the plaint averments the suit property is situated at Block Fanda, Tahsil Huzur, District Bhopal and the same is ancestral property of the petitioner and the respondents No.1 to 12 (defendants No.1 to 12) and they were in joint possession of it. 3. The plaintiff alleged that the defendants No. 1 to 12 without informing him and without his consent transferred the said joint property in favour of the respondent No. 14 (defendant No. 14) and executed a sale deed in favour of the defendant No. 14. He accordingly, prayed for declaration of the said sale deed to be void and also prayed that the defendants No.1 and 14 be restrained from interfering in his possession. In the said suit the petitioner filed an application under Order 39 Rules 1 and 2 of Code of the Civil Procedure seeking temporary injunction against the defendants No. 13 and 14. The defendant No. 14 submitted his reply to the application for temporary injunction and stated that the suit has been filed malafidely. He stated that the plaintiff having accepted the demarcation of the land done by the Tahsildar has no right to seek temporary injunction against him. 4. After hearing the parties on the plaintiff's application for temporary injunction the trial Court vide order dated 31.1.2007 allowed the application for temporary injunction and restrained the defendants No. 13 and 14 from interfering into the possession of the plaintiff on the suit land. Feeling aggrieved, the defendant No. 14 preferred a misc. appeal. The said misc. appeal has been allowed vide impugned order by the appellate Court by setting aside the order of temporary injunction passed by the trial Court. 5. Learned counsel for the petitioner/plaintiff submits that the order passed by the trial Court being based on correct principles governing grant of temporary injunction, the same should not have been disturbed by the appellate Court in a slipshod manner. 5. Learned counsel for the petitioner/plaintiff submits that the order passed by the trial Court being based on correct principles governing grant of temporary injunction, the same should not have been disturbed by the appellate Court in a slipshod manner. According to the learned counsel for the petitioner, the property being ancestral and has been sold by the coparceners without the consent of the petitioner coparcener the sale deed is void. He submits that the parties are governed by Mitakshara Law and as such in view of Para 260 of Hindu Law by Mulla (Vol. 1) 17th Edition the alienation by the coparcener of his undivided interest without his consent and without legal necessity is not permissible. He further submits that the demarcation proceedings carried out by the Tahsildar having been conducted in violation of the provisions of M.P. Land Revenue Code, 1959 and the petitioner's thumb impression having been obtained by misrepresentation cannot be a ground to upset the well reasoned order of the trial Court granting temporary injunction in favour of the petitioner as has been done by the appellate Court. He contends that the respondents No. 14 who is builder if not restrained from raising construction of houses over the suit land, the petitioner would suffer irreparable injury and would invite multiplicity of the proceedings through prospective purchasers of houses/flats as may be constructed by the respondent/defendant No. 14. 6. On the other hand learned counsel for respondent No. 14 supporting the appellate Courts order submits that even assuming the petitioner to be a joint owner with other co-owners from whom the defendant No. 14 has purchased the entire property, the petitioner's share would be only 1/13 of the total property and which will be only 0.17 Acres of land, as against this the petitioner/plaintiff is in possession of 0.32 Acres on the basis of demarcation of land made by the Tahsildar. He further submits that the respondent No. 14 having invested huge amount for purchase of the said land, if restrained from raising construction his money would be blocked and he would suffer irreparable financial loss. He also contends that the respondent No. 14 has purchased the property from the other co-owners except the petitioner in the circumstances, he has stepped into the shoes of the other co-owners, therefore, he has got full right to raise construction on the suit land in the capacity of co-owner. He also contends that the respondent No. 14 has purchased the property from the other co-owners except the petitioner in the circumstances, he has stepped into the shoes of the other co-owners, therefore, he has got full right to raise construction on the suit land in the capacity of co-owner. In support he placed strong reliance of the Full Bench judgment of Allahabad High Court in case of Chhedi Lal and another v. Chhotey Lal [AIR 1951 Allahabad 199]. . 7. Having considered the contentions raised by the learned counsel for the parties and the documents filed by them, I am of the view that this petition deserves to be allowed. 8. The petitioner's contention that the parties are governed by Mitakshara Law has not been disputed by learned counsel for the respondent No. 14. On going through copy of the plaint, I find that there is no averment in the plaint as to whether the Banaras School of Mitakshara Law or Bombay School of Mitakshara Law is applicable to the parties.In case, Banaras School is applicable no coparcener can alienate his undivided interest without consent of other coparcener unless alienation is for legal necessity. (See para 260 Principles of Hindu Law by Mulla (Vol. I) 17th Edition, and the judgment dated 3.7.2007, in Second Appeal 176/1986 Indrabhan and others v. Chhotelal passed by learned Single Judge of this Court. However, in case of Bombay School the coparcener may alienate his undivided interest in the entire joint family property and the purchaser after purchasing undivided interest of coparcener can file a suit for a general partition (See para 261 of Principles of Hindu Law by Mulla (Vol. I) 17th Edition). Keeping in my mind that the parties are governed by Mitakshara Law and the legal position in that regard the matter has to be examined. 9. The question which, requires determination in this petition is whether in view of the aforesaid facts and circumstances of the case the order of the trial Court granting temporary injunction in favour of the petitioner/ plaintiff has rightly been set aside by the appellate Court or not and whether the petitioner/plaintiff has rightly been granted temporary injunction by the trial Court restraining defendants No. 13 & 14 from raising construction on the suit land. 10. 10. In my considered view the plaintiff/petitioner having established the prima facie case, balance of convenience in his favour and the irreparable loss would cause to him, if the construction is raised by the defendant No. 14 during the pendency of the suit, the trial Court has rightly granted injunction in his favour. The appellate Court by giving much importance to the demarcation done by the Tahsildar has committed error in setting aside the said order on the ground that the defendant No. 14 is in possession and if he is dispossessed he will suffer irreparable loss. The petitioner/plaintiff being joint owner of the coparcenery property and the sale deed having been effected of the entire joint property without his consent and prima facie as is evident from the sale deed without legal necessity he has got a prima facie case. There may be demarcation of the property by the Tahsildar still the defendant No. 14 has to prove that the sale deed of the joint property without consent of the petitioner coparcener is valid. 11. The contention of the respondent No. 14 is that he will not construct on the portion of the land which is in possession of the petitioner as per the demarcation of land made by the Tahsildar or he will return the share of the petitioner, if the petitioner succeeds cannot be a ground to reject the prayer for temporary injunction because any construction if allowed to be raised during the pendency of the suit that would change the nature and use of the property and would also invite multiplicity of the suits as it is the case of the respondent No. 14 that he wants to construct and sale the flats/houses. In this view of the matter, the balance of convenience is in favour of the petitioner/plaintiff and if the order of the trial Court granting injunction is not restored he will suffer irreparable injury. On the other hand if the respondent No. 14 succeeds he can be compensated in terms of money. 12. The judgment of the Full Bench of Allahabad High Court in case of Chhedi Lai and another v. Chhotey Lal (supra) is of no help to the respondent No. 14 as the same is not a case of temporary injunction but a case of permanent injunction. 12. The judgment of the Full Bench of Allahabad High Court in case of Chhedi Lai and another v. Chhotey Lal (supra) is of no help to the respondent No. 14 as the same is not a case of temporary injunction but a case of permanent injunction. However, in the said case also the Full Bench of Allahabad High Court has observed that : "Each case will be decided upon its own peculiar facts and it will be left to the Court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. That the Court in the exercise of its discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the Court to lay down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused." Thus even applying the principles laid down in the case of Chhedi Lal and another v. Chhotey Lal (supra) which are for grant of permanent injunction the Court is required to exercise discretion guided by consideration of justice, equity and good conscience. The order of the trial Court granting temporary injunction if tested upon these considerations fulfills the said requirements as the justice, equity and good conscience demand not to allow change in the nature of the suit property and not to invite multiplicity of the proceedings. 13. On a perusal of the impugned appellate order I find that appellate Court has interfered into the order passed by the trial Court granting temporary injunction without assigning any cogent reasons. It is well settled that if the temporary injunction has been granted by the trial Court after rightly applying the facts on the basis of the well established principles for granting temporary injunction then that is a sound exercise of the judicial discretion and ordinarily the appellate Court will not interfere into it. (See M.P.C.W. Fed v. Collieries [1972 JU 167], Om Prakash Singh v. Smt. Sunder Bai [1981 (Vol. I) M.P. Weekly Notes 245 and Devi Singh and others v. State of M.P. and others [1995 (2) Vibha 284]. (See M.P.C.W. Fed v. Collieries [1972 JU 167], Om Prakash Singh v. Smt. Sunder Bai [1981 (Vol. I) M.P. Weekly Notes 245 and Devi Singh and others v. State of M.P. and others [1995 (2) Vibha 284]. On going through the order of the trial Court, I find that the trial Court allowed the petitioner's application for temporary injunction after properly applying the facts and correct principles for granting temporary injunction, in the circumstances the said order should not have been interfered into by the appellate Court in a slipshed manner. The appellate Court without applying the principles for grant of temporary injunction has allowed the appeal of the respondent No. 14. In the circumstances the appellate order cannot be sustained. . 14. Accordingly, the impugned order passed by the appellate Court is set aside and the order passed by the trial Court granting temporary injunction in favour of the petitioner/plaintiff is restored. 15. Having regard to the controversy involved and the entire facts and circumstances of the case, the trial Court is directed to make endeavour to decide the suit as expeditiously as possible preferably within four months from the date of receipt of copy of this order. The parties shall cooperate for the final disposal of the suit in the aforesaid time limit. 16. The petition is allowed. No order as to costs.