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2009 DIGILAW 149 (JK)

Sudershan Khullar v. Joginder Nath

2009-04-02

SUNIL HALI

body2009
1. A dispute relating to two Quarters Nos. 220 and 221 at Rehari Colony, Jammu allotted to the family as displaced persons of 1947, has brought the parties into a litigating mode. The aforementioned quarters stood allotted to one late Lakshmi Dass, as resident of village Dhana Tehsil Kotli District Mirpur now POK , who migrated to this side of the State as a displaced person, through the scheme adopted by the State of Jammu and Kashmir for such persons. At the time of his migration, the strength of the family being more than five members, he became entitled to the allotment of aforementioned quarters. The details of his family members were given in Form-A filed with the Provisional Rehabilitation Officer. On the strength of the family, he became entitled to two quarters mentioned hereinabove. 2. The respondent filed a suit before the 2nd Additional District Judge, Jammu claiming to be in joint ownership and possession of the aforementioned quarters. He sought partition of the aforementioned property by metes and bounds. The genesis of the suit is based upon the fact that the allotment was made to the family and not to the head of the family. He being the member of the family, was entitled to seek his share in the aforementioned property, which was being denied by petitioner. He also filed an application for grant of temporary injunction. His prayer has been declined by the trial court and this court also. 3. The respondent-1 has filed one more suit challenging the gift deed executed in favour of petitioner on 25-4-1986. The challenge is based upon the fact that he being the co- sharer in the property, the same could not have been gifted by petitioner-2. The other contention is that petitioner-2 was not absolute owner of the property but only a head of the family, as such, he had no right to transfer the property by way of gift deed to the petitioner-1 4. On the other hand, the stand of the defendant petitioner is that said late Lakshmi Dass separated himself from the family and has obtained separate land in his favour in the year 1958. On the other hand, the stand of the defendant petitioner is that said late Lakshmi Dass separated himself from the family and has obtained separate land in his favour in the year 1958. Land measuring 32 kanals and 9 marlas was allotted in his favour falling under kliasra No. 263 situated at Gordharn Pain Tehsil Rajouri., He has also been allotted land measuring 3 kanals and 11 marlas at village Kutab Nizam , Tehsil R.S. Pura. It is further averred that after the death of Lakshmi Dass, all his successors including plaintiffs- respondents, abandoned and relinquished their right in the suit property i.e. Quarter Nos. 220 and 221 in favour of their mother. In view of this, Provisional Rehabilitation Officer, Jammu on 16-2-1973 appointed petitioner -2 as-the sole successor of Lakshmi Dass qua the suit property. In this respect, an agreement came to be executed between petitioner -2 and the State Government on 15-11-1975 and the ownership rights qua quarter no. 220/221 were conferred on petitioner -2. 5. Application for grant of interim relief filed by respondent, came to be dismissed by the trial court. An appeal came to be filed against this order before the 1st Additional District Judge, Jammu, who vide his order dated 4-10-2007, allowed this appeal and directed petitioners not to alienate the suit house in question in any manner or part with the possession of the same. It is under these circumstances that the present revision petitions have been filed. 6. I have heard the learned counsel for the parties. 7. It is not in dispute that the parties are successors of late Lakshmi Dass, who was allotted the aforesaid quarters as displaced person under the scheme. The allotment of aforementioned quarters was to be preceded by a declaration made in Form-A indicating the strength of the family. The strength of the family has entitled late Lakshmi Dass to allotment of quarters 220/221. The respondent was also a member of the said family. Whether head of the family would be the sole proprietor of the property allotted to him or his LRs would also be co-owners with him, is the sole issue, which is required to be determined in these cases. Since two suits are already pending before the court below and it would be not proper for this court to make any observation on that question. Since two suits are already pending before the court below and it would be not proper for this court to make any observation on that question. The only controversy which is required to be determined by this court in these revision petitions, is with regard to the grant or refusal of temporary injunction in favour of plaintiffs-respondents. 8. The respondent has already filed a suit in which he has sought partition of the aforementioned property. In the said suit, interim relief has been refused. In the present suit, he seeks cancellation of gift deed, which has been executed in the year 1986. Said gift deed has been challenged after a lapse of 17 years. The present petitioners have denied the possession of plaintiff- respondent in the said suit property. Their categoric stand is that he has already separated himself from the family and as a consequence of which he has been allotted land at Rajouri and Miran Sahib. 9. In this backdrop, is the plaintiff entitled to any interim relief, is the issue for determination in these-petitions. 10. The parties are not entitled to the order of injunction as a matter of course. Grant of injunction is within the discretion of the court and as such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain status quo. The court grants such relief according to the legal principles - ex debito justitiae. Before any such order is passed, the court must be satisfied that a strong prima facie case is made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience. 11. Applying the aforesaid principles to the facts of the case to see as to whether plaintiff- respondent has a prima-facie case, following things are observed by the court: a) That a suit for partition has been filed by the plaintiff-respondent before the 2nd Additional District Judge, Jammu with respect to the same property. His claim for injunction has been refused. Applying the aforesaid principles to the facts of the case to see as to whether plaintiff- respondent has a prima-facie case, following things are observed by the court: a) That a suit for partition has been filed by the plaintiff-respondent before the 2nd Additional District Judge, Jammu with respect to the same property. His claim for injunction has been refused. b) The grievance of the petitioners in the application is that petitioner-1 in whose favour the gift deed has been executed should not create third party interest in the property. 12. This court is called upon to address itself to the application filed by the respondent in suit where the gift deed has been challenged. The plea of the respondent that the petitioners would alienate the property and create third party interest in the lis which will make it impossible for the respondent- plaintiff to retrieve the said property. As already discussed above, the order of injunction cannot be granted as a matter of course, unless the parties seeking relief have prima facie title to the property. Prima facie, there is no proof shown by the respondent that he is in possession of the property. Be that as it may, the rights of the respondent- plaintiff are fully protected by applying the principle of lis pendens. As a matter of fact, his right stands protected. 12. Section 52 of Transfer of Property Act deals with the principle of lis pendens. It protects the right of suitor to any immovable property, which is subject matter of issue in the court. It forewarns the creation of third partys interest in the property, which has the effect of defeating the right of a person in whose favour decree or order is passed by the court of competent jurisdiction. It, in essence, forbids to transfer right in third party during the pendency of litigation. If any decree or order is passed in such proceedings, any transfer of right during interregnum shall be determined as nonest in the eyes of law. In view of this principle, rights of the respondent-plaintiff are fully protected. 13. Viewed from all angles, I therefore, allow these revision petitions and set aside the order of the 1st Additional District Judge, Jammu and confirm the order of the trial court. Parties are directed to appear before the court below on 15-4-2009.