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2009 DIGILAW 151 (JK)

Sunder Lal Bhatia v. Charan Lal Bhatia

2009-04-02

SUNIL HALI

body2009
1. The dispute in this appeal relates to rejection of an application for temporary injunction filed by the appellant in civil suit pending before the trial court. Sale deed dated 17-8-06 executed in respect of land measuring 2 kanals and 10 marlas of land situated in survey no. 985 /min in village Deeli Tehsil and District Jammu, has been challenged before the court below. The claim of appellant rests on the facts that 6 kanals and 10 marlas of land situated in the aforementioned survey number, is in his adverse possession and his dispossession by resorting to forcible means has been initiated by the respondents. 2. A civil suit has been filed by the appellant seeking injunction against the respondents in respect of 6 kanals and 10 marlas of land before the court below, in which an order of status quo has been passed. During the pendency of interim direction, respondents 1 to 3 have executed a sale deed in respect of 2 kanals and 10 marlas of land in favour of respondent-2. This impelled the appellant to file another suit seeking cancellation of the aforementioned sale deed before the court below. An application for grant of temporary injunction was also filed, which has been rejected. It is under these circumstances, the present appeal has been filed. 3. I have heard the learned counsel for the parties. 4. Undisputed facts of the case are that two suits are pending in different courts regarding the same property and both have been filed by the appellant. The relief claimed in the first suit is that the petitioner is in adverse possession of the property, which is sought to be disturbed by the respondents. There is an order of status quo passed by the court, which continues to remain in operation. In the other suit, the appellant has sought cancellation of the sale deed executed in respect of 2 kanals and 10 marlas out of 6 kanals and 10 marlas of land. The relief claimed in the application for temporary injunction was that the respondents be directed not to interfere with the possession and they be further restrained from alienating the same. The relief claimed in the application for temporary injunction was that the respondents be directed not to interfere with the possession and they be further restrained from alienating the same. The trial court while dealing with the case, has found the appellant disentitled to the relief on the following grounds: a) that the claim of adverse possession made by the appellant in the previous suit, does not disclose the fact as to when the appellant has come in possession of the said land. Having failed to do so in his pleadings, as to when he dispossessed the wrongful owner, his application for grant of interim temporary injunction, cannot be accepted. b) that there is no bonafide contention between the appellant and the respondents, as there is no substantial question to be decided. Appellant has failed to show that there is some probability in the success of the case. c) that direction issued in another suit regarding the maintenance of status quo and subsequent violation by the respondents cannot be examined by this court, as this is an issue, which cannot be agitated successfully before this court nor would it entitle the appellant to claim an interim relief from this court. 5. The finding of the trial court cannot be faulted. Emphasis laid by the appellant that he is in adverse possession without indicating the time and the date when he dispossessed the rightful owner and that he has been using the property to the knowledge of the owner, is sufficient to deny the appellant the relief in the interim application. As rightly stated by the trial court that the power of the court in granting injunction should be exercised cautiously and upon clear and satisfactory grounds. The effect of granting such an order is a restrictive process designed to compel the party against whom it is granted to maintain his status until the matter in dispute is decided by the court. The trial court has rightly declined to grant an order of injunction in this respect. 6. The other ground, which has been seriously contended by the learned counsel for appellant is that in view of order of status quo granted by another court, directing the maintenance of status quo, no fresh sale deed could have been executed by the respondents. The trial court has rightly declined to grant an order of injunction in this respect. 6. The other ground, which has been seriously contended by the learned counsel for appellant is that in view of order of status quo granted by another court, directing the maintenance of status quo, no fresh sale deed could have been executed by the respondents. He states that such an action by the respondents, was in violation of section 52 of the Transfer of Property Act (hereinafter called the Act). The essence of the argument is that the order of restrain could be issued by the court by invoking the aforementioned provision. In order to understand and appreciate this controversy, section 52 of the Transfer of Property Act is reproduced below: "Transfer of property pending suit relating thereto During the pendency in any court having authority in the State, of any suit or proceeding which is not collusive and in which any right to immovable property is directed and specifically in question, the property cannot be transferred otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation : For the purposes of this section, the pendency of the suit or proceedings shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to Continue until the suit or proceeding has been disposed of by a final decree , or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force." 7. Section 52 of the 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 said 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 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 said 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. The import of section -52 of the Act is that if there is any transfer of right in immovable property during the pendency of the suit, such transfer will be nonest in the eyes of law. The contention raised by the appellant that the court can exercise power under section 52 of the Act in restraining the respondents from alienating property to a third person, is not correct understanding of the provision. The court has no power to pass such order under section 52 of the Act. Interpretation of section 52 as stated by the petitioner, cannot be accepted for the reason that even if there has, been transfer of right in immovable property in favour of third party, that will be treated as nonest in the eyes of law, in case the plaintiff succeeds in obtaining decree in his favour. This contention of appellant also cannot be accepted. It is also stated by the appellant at the bar that respondent -2 is trying to interfere with his possession in respect of other property relating to four kanals of land for which there is no sale deed executed in his favour. Needless to say that respondent-2 has no right to interfere in respect of property, which does not belong to him and for which he has no title. In case any such attempt is made by respondent-2, appellant will be free to initiate proceedings against him in any court of law. 8. For the reasons stated above, this appeal is dismissed. Parties are directed to appear before the trial court on 23-4-2009.