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2010 DIGILAW 1038 (MP)

Dharmdev Singh Rajput v. Kavindra Singh

2010-10-12

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
ORDER A.K. Shrivastava, J. -- 1. Feeling aggrieved by the order dated 16.2.2009 passed by learned Third Additional District Judge, Vidisha, in Misc. Civil Appeal No. 29/2008, whereby the order dated 21.8.2008 passed by learned Second Civil Judge, Class II, Vidisha in civil suit No. 69-A/2008 allowing the application of temporary injunction of plaintiff has been reversed and the appeal of defendants 1 and 2 has been allowed by dismissing the application for issuance of temporary injunction of plaintiff, this petition under Article 227 of the Constitution of India has been filed by the plaintiff/petitioner. 2. No exhaustive statement of facts are required to be narrated for the purpose of disposal of this petition. Suffice it to say that a suit for declaration in respect of certain agricultural lands, which are the subject matter of the suit, has been filed by the plaintiff/petitioner praying that the suit land is of Joint Hindu Family and the plaintiff is having 1/2 share in it. A relief of injunction has also been sought that a decree of injunction be issued against defendants 1 and 2 restraining them to alienate the suit property in any manner. 3. An application for issuance of temporary injunction under Order 39 Rule 1 and 2 of CPC has also been filed by the plaintiff praying in it that till the decision of the suit, defendants 1 and 2 be restrained from alienating the suit property. 4. The defendants refuted the averments made in the application for issuance of temporary injunction by filing a reply praying therein that plaintiff is not entitled for the relief which he has prayed for, and hence, it has been prayed that application for issuance of temporary injunction be dismissed. 5. The learned Trial Court on the basis of the pleadings, affidavits and other material placed on record, allowed the application of temporary injunction of plaintiff and restrained defendants 1 and 2 from alienating the suit property vide order dated 21.8.2008 (annexure P/2). 6. The defendants, feeling aggrieved by the said order of learned trial Court, filed Misc. Civil Appeal before learned first appellate Court which has been allowed by the impugned order and the application for issuance of temporary injunction of the plaintiff has been dismissed. 7. In this manner, this petition under Article 227 of the Constitution of India has been filed by the plaintiff/petitioner. 8. Civil Appeal before learned first appellate Court which has been allowed by the impugned order and the application for issuance of temporary injunction of the plaintiff has been dismissed. 7. In this manner, this petition under Article 227 of the Constitution of India has been filed by the plaintiff/petitioner. 8. Shri Bansal, learned counsel for the plaintiff/petitioner, submits that plaintiff and defendant No.1 are the real brothers and defendant No.2 is the son of defendant No.1. Learned counsel further submits that there is a specific pleading of the plaintiff that parties belong to Joint Hindu Family. Further, it has been pleaded in para 2 that the agricultural land, the description whereof is mentioned in this para, is owned by HUF in which the plaintiff and defendants are having 1/2 share each. Further, it has been pleaded that the defendants are intending to alienate the suit property, and hence, the suit has been filed. It has been further submitted by learned counsel that the revenue record has been filed by the plaintiff in the trial Court in which except survey No. 157/7/1, which is in the exclusive name of defendant No.1 and survey No. 157/7/2, which is in the exclusive name of his son Mahesh Yadav and survey Nos. 157/5, 157/06, 1735 which have been recorded in the exclusive name of plaintiff, rest other survey numbers, namely 22, 27, 53/1, 54/2, 146, 152, 153, 154, 156, 471/3 and 471/4, the names of plaintiff and defendant No. 1 have been mentioned. Hence, it has been contended by learned counsel that the defendants be restrained from alienating the entire suit property which includes all the survey numbers mentioned in para 2 of the plaint since it is in the joint name of plaintiff and defendants. 9. So far as survey Nos. 157/7/1 and 157/7/2 recorded in the name of defendant No. 1 and defendant No.2 respectively are concerned, the contention of learned counsel for the petitioner/plaintiff is that from the nucleus of HUF, these two properties were purchased although they are in the name of defendants 1 and 2 respectively, and therefore, the defendants are not entitled to alienate the entire suit property including survey Nos. 157/7/1 and 157/7/2 recorded exclusively in the name of defendants as well as survey Nos. 157/5, 157/06, 1735 recorded exclusively in the name of plaintiff, but it is of HUF only. 157/7/1 and 157/7/2 recorded exclusively in the name of defendants as well as survey Nos. 157/5, 157/06, 1735 recorded exclusively in the name of plaintiff, but it is of HUF only. In support of his contention, learned counsel has placed reliance on the decision of Supreme Court Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass. (2004) 8 SCC 488 and two Single Bench decisions of this Court in Kallu v. Smt. Prem Bai and others, 1997 RN 238 and Shobhna Sardesai v. Radhey Shyam, 1999 (II) MPWN 11 . 10. By placing reliance on the decision of Supreme Court Surendra Kumar v. Phoolchand and another, 1996 JLJ 477 , it has been contended that since the major portion of the suit property is in the name of plaintiff and defendants, it would mean that from the nucleus of HUF survey Nos. 157/7/1 and 157/7/2 were purchased although they are in the name of Kavindra Singh and Mahesh Yadav, defendants 1 and 2 respectively. 11. On the other hand, Shri K.S. Tomar, learned senior counsel for respondents 1 and 2/defendants, argued in support of the impugned order passed by learned first appellate Court and has submitted that as per plaintiff's own showing in para 2 of the plaint, apart from survey Nos. 157/7/1 and 157/7/2, two more survey Nos. 197/1 area 0.31 hectare and 200/1 area 3.44 hectare, total area 3.75 hectares of Patwari Halka No. 36 of village Mundara Harisingh are also recorded exclusively in the name of defendant No.2 although other survey numbers are recorded jointly in the name of plaintiff and defendant No.1. Learned counsel further submits that merely because the family is joint, there is no presumption that the property owned by a coparcener is also of joint Hindu Family and it is for the person who alleges it to be the property of HUF, to prove by pleading necessary averments and further by placing relevant material in that regard. Learned senior counsel further submits that cogent reasons have been assigned by learned first appellate Court dismissing the application of temporary injunction of plaintiff and looking to the limited scope of Article 227 of the Constitution of India, this Court should decline to interfere in the order and hence it has been prayed that this petition be dismissed. 12. Learned senior counsel further submits that cogent reasons have been assigned by learned first appellate Court dismissing the application of temporary injunction of plaintiff and looking to the limited scope of Article 227 of the Constitution of India, this Court should decline to interfere in the order and hence it has been prayed that this petition be dismissed. 12. Having heard learned counsel for the parties, we are of the considered view that this petition deserves to be allowed in part. 13. There is specific pleading of the plaintiff/petitioner that certain survey numbers, the description whereof we have mentioned hereinabove, have been recorded in the joint name of plaintiff and defendants. Further, there is pleading of plaintiff that the family of plaintiff and defendants is Hindu Undivided Family. Hence, there is specific pleading of the plaintiff in respect of existence of HUF and the averments made in para 2 of the plaint that certain survey numbers, which are recorded in the joint name of plaintiff and defendants, are the property owned by HUE The existence of HUF has not been denied by defendants/respondents in their reply to the application under Order 39 Rule 1 and 2 of CPC. We have been informed that written statement is yet to be filed. Hence, according to us, that part of the suit property which is recorded jointly in the name of plaintiff and defendants No.1 and 2, for the purpose of deciding the application of temporary injunction, shall be deemed to be the property of HUF since the averment made in the plaint of plaintiff is also supported by the documents, which are the revenue record, in which the property has been shown to be in the joint name of plaintiff and defendant. Needless to say, plaintiff and defendant No.1 are the real brothers and defendant No.2 is the son of defendant No.1 and hence prima facie so far as these properties, which are recorded in the joint name, are concerned, it appears that plaintiff and defendants are the co-Bhumiswamis having half share each in it. 14. Needless to say, plaintiff and defendant No.1 are the real brothers and defendant No.2 is the son of defendant No.1 and hence prima facie so far as these properties, which are recorded in the joint name, are concerned, it appears that plaintiff and defendants are the co-Bhumiswamis having half share each in it. 14. Since there is overwhelming evidence placed on record and this point has also been taken note of by learned trial Court in para 8 of its order dated 21.8.2008 that an advertisement was published in daily newspaper "Dainik Bhaskar" in respect of alienation of the suit property, and therefore, there was an apprehension in the mind of plaintiff that the suit property will be alienated and he will suffer irreparable loss in case defendants succeed in alienating that property which is jointly recorded in the name of defendants and plaintiff. The decision of Supreme Court Maharwal Khewaji Trust (Regd.) Faridkot (supra) as well as to decisions of learned Single Bench Kallu and Shobhna Sardesai (supra) placed reliance by learned counsel for the petitioner/plaintiff are quite relevant and are fully applicable in the present facts and circumstances of the case. 15. However, we are not convinced with the submission of Shri Bansal, learned counsel for the petitioner, that Survey No. 157/7/1 and 157/7/2 recorded in the name of defendants No.1 and 2 respectively as well as survey No. 197/1 and 2000/1 exclusively recorded in the name of defendant No.2 would be deemed to be the property of HUF. According to us, these properties are recorded exclusively in the name of defendant No. 1 and defendant No., 2 merely because defendants 1 and 2 are the members of HUF, there cannot be any legal presumption that the property, which is exclusively owned by them, is of HUF and in this regard it is for the plaintiff to demonstrate that the property although is in the exclusive name of a coparcener, but it is of HUF, in this context, we may profitably place reliance on Article 231 (2) of Mulla's Hindu Law 20th Edition Vol. 1 page 394, which reads thus:- "(2) No presumption that a joint family possesses joint property- There is no presumption that a family, because it is joint, possesses joint property or any property. 1 page 394, which reads thus:- "(2) No presumption that a joint family possesses joint property- There is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition, a party claims that any particular item of the property is joint family property or when in a suit for a mortgage, a party contends that the property mortgaged is joint family property, the burden of proving it rests on the party asserting it" There is no specific pleading of plaintiff that from the funds of HUF these survey Nos. 157/7/1, 157/7/2 as well as 197/1, 200/1 were purchased although they were brought in the name of defendants 1 and 2 respectively. We also do not find any merit in the contention of Shri Bansal, learned counsel for the petitioner, that he has also challenged the revenue entry indicating the names of defendants exclusively on these survey numbers, for the simple reason that though there is some whisper in the body of plaint in that regard, but in the relief clause no such relief has been prayed that revenue entry be corrected accordingly. Since the law is very clear that it is for the person, who says that the property is of HUF and was purchased from the funds of HUF and not by the person in whose name that property exclusively is recorded to prove it and in absence of any pleading, affidavits and other material placed on record, the bald statement of plaintiff in the plaint would not constitute prima facie case in his favour so far as these survey numbers 157/7/1, 157/7/2 as well as 197/1, 200/1 are concerned. The decision of Surendra Kumar (supra) is tangentially off the point and is not applicable in the facts and circumstances of the present case for the simple reason that nucleus in that case was found to be proved and it was not in dispute, but in the present case, there is no such admission of the defendants. 16. For the reasons stated hereinabove, this petition is allowed in part. The application of plaintiff for temporary injunction is hereby allowed in part and except survey Nos. 157/7/1, 157/7/2 as well as 197/1, 200/1 for rest other suit property, the defendants are restrained from alienating it till the decision of the suit. 16. For the reasons stated hereinabove, this petition is allowed in part. The application of plaintiff for temporary injunction is hereby allowed in part and except survey Nos. 157/7/1, 157/7/2 as well as 197/1, 200/1 for rest other suit property, the defendants are restrained from alienating it till the decision of the suit. The application of temporary injunction of plaintiff for survey Nos.157/7/1, 157/7/2 as well as 197/1 and 200/1 is hereby dismissed. The orders of two Courts below stand modified accordingly with no order as to costs.