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2010 DIGILAW 95 (RAJ)

Moorti Thakur Shri Sitaramji v. Raghvendra Singh

2010-01-13

DALIP SINGH

body2010
Hon'ble SINGH, J.—Heard learned counsel for the parties. 2. Perused the impugned judgment of the learned trial Court dated 8.12.2009 in miscellaneous case bearing No. 50 of 2009 (353/2009) passed on the application for grant of temporary injunction, in a suit filed by the plaintiff-appellants for declaration and injunction and cancellation of the decree. 3. Facts, in brief, are that a suit came to be filed by the predecessor-in-title of the respondents No. 1, 2 and 3- Rajeshwar Singh for eviction against Hari Narayan alleging him to be the tenant in the property. Hari Narayan died during the pendency of the suit. Hari Narayan had filed written-statement alleging himself to be the owner of the property and denying that he was the tenant of Rajeshwar Singh or that he was the owner of the property. Hari Narayan died during the pendency of the suit and one Jagdish Prasad alleging himself to be his adopted son was substituted in place of Hari Narayan as the defendant. The appellant Nos. 2 to 6 are the legal representatives and heirs of deceased Jagdish Prasad also were substituted as LRs. of Jagdish Prasad in the suit after his death against whom the decree for eviction was passed and they have filed the present suit, along with the plaintiff No. 1 Moorti Thakur Shri Sitaram Ji for the above relief. 4. It may be mentioned here that after the death of Jagdish Prasad during the pendency of the appeal against the decree of the learned trial Court in the suit for eviction the appellant Nos. 2 to 6 had been substituted in place of Jagdish Prasad. Against them the findings of the Courts below in the judgment and decree stand and are final. 5. The present suit has been filed by the plaintiffs alleging that the property, in dispute belongs to the plaintiff No.1-Moorti Thakur Ji Shri Sitaram Ji and, therefore, the decree obtained by Rajeshwar Singh, the predecessor-in-title of the respondents No. 1 to 3 be declared to be null and void. 6. The learned trial Court while discussing a prima-facie case after the discussion of the material on record came to the conclusion that neither Hari Narayan nor Jagdish Prasad in the earlier suit in which the decree for eviction was passed against the plaintiff Nos. 6. The learned trial Court while discussing a prima-facie case after the discussion of the material on record came to the conclusion that neither Hari Narayan nor Jagdish Prasad in the earlier suit in which the decree for eviction was passed against the plaintiff Nos. 2 to 6 had ever stated or alleged that the property, in dispute belonged to the plaintiff No. 1 and on the contrary alleged that they were the owners of the same denying the title of the landlord. 7. An issue denying the title of the landlord was also framed as Issue No. 6, which the learned trial Court, learned first appellate Court and this Court in second appeal decided in favour of the landlord-Rajeshwar Singh predecessor of respondent Nos. 1 to 3 and that finding is conclusive so far as the plaintiff Nos. 2 to 6 are concerned and they cannot be permitted to raise the aforesaid plea again in the present suit. 8. The learned trial Court after taking into consideration the entire facts and circumstances of the case has come to the conclusion that there is no prima-facie case in favour of the plaintiffs and has accordingly while deciding the matter with regard to the balance of convenience and irreparable loss also held in favour of defendant-respondents. 9. In the facts and circumstances of the case, since the defendants in present suit are trying to obtain the possession only after the execution of the decree passed against Hari Narayan/Jagdish Prasad and the plaintiff Nos. 2 to 6, there is no case for grant of temporary injunction to restrain the respondent Nos. 1 to 3 and so far as plaintiff No. 1 is concerned it suffers no irreparable loss. The present miscellaneous appeal filed the judgment of the learned trial Court dated 8.12.2009 is accordingly dismissed summarily. 10. It is made clear that any observations made either by the learned trial Court or by this Court while deciding the present appeal or the application for the grant of temporary injunction shall not prejudice the case either by the parties at the trial where the learned Courts below would decide the matter on the basis of the evidence led by the parties at trial independently of the observations made herein.