Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 137 (RAJ)

Narottam v. Geeta Devi

2011-01-18

R.S.CHAUHAN

body2011
ORDER : R.S. Chauhan, J. 1. Aggrieved by the grant of temporary injunction vide order dated 04-01-2011, passed by the Additional District Judge, Jhunjhunu, the defendant-appellant has approached this Court. 2. The brief facts of the case are that the plaintiffs-respondents, Geeta Devi and others, had filed a suit for partition against the defendant-appellant. Geeta Devi had claimed that Jhabar Mal, her father-in-law, had three sons, namely Chiranji Lal, Narottam and Deendayal. Her father-in-law had bought a property, namely a Nohara. After his demise, the said property had devolved on the three sons. Since she and plaintiffs-respondent Nos. 2 to 7 happen to be the legal heirs of Chiranji Lal, they are entitled to partition of the property. Along with the suit, she had filed an application under Order 39, Rules 1 and 2, Civil Procedure Code. 3. On the other hand, the defendant-appellant had pleaded that although the said property was bought by Jhabar Mal, Chiranji Lal had separated himself from the family a long time ago. Moreover, Jhabar Mal had left a Will. According to the Will, the said Nohara was to be given to the defendant-appellant and his brother, Deendayal. Thus, because of the said Will Chiranji Lal and his legal heirs were ousted from inheriting the said property. Moreover, even on an earlier occasion in 1995, the plaintiffs-respondents had filed a civil suit for permanent injunction and declaration. However, vide Judgment dated 12-10-2006, the said suit was dismissed. In the said suit, the defendant-appellant had also raised the plea about the existence of a Will. Therefore, the present suit is not only hit by the doctrine of res judicata, but most importantly, the plaintiffs-respondents have not challenged the veracity of the Will. Hence, they have accepted the Will. 4. However, vide order dated 04-01-2011, the learned Court has restrained the defendant-appellant from transferring or from selling the said property and has directed that the status quo should be maintained. Hence, this appeal before this Court. 5. Mr. S.S. Sunda, the learned counsel for the defendant-appellant, has vehemently contended that as mentioned above, an earlier suit was filed by the plaintiffs-respondents. The suit was between the same parties and in the said suit the defendant-appellant raised the plea about the existence of the Will. Since the said suit was dismissed, therefore, the doctrine of res judicata is clearly applicable. The suit was between the same parties and in the said suit the defendant-appellant raised the plea about the existence of the Will. Since the said suit was dismissed, therefore, the doctrine of res judicata is clearly applicable. Secondly, on the basis of the Will, the electricity connection and the permission for further construction have been given to the defendant-appellant. Moreover, the defendant-appellant happens to be in possession of the said property ever since the time of his father. Meanwhile, Chiranji Lal and the plaintiffs-respondents had separated from the family. Thus, they do not have any possession over the said property. 6. On the other hand, Mr. Virendra Manjhu, the learned counsel for the plaintiffs- respondents, has contended that after the dismissal of the earlier suit in 2006, there has been some change in the circumstances. For, Deendayal has expired. In case the statement of the defendant-appellant were taken to be true that Deendayal had a right over the property because of a Will, even then considering the fact that Deendayal has died issueless, the plaintiffs-respondents would have a right to inherent property as class second heirs of Deendayal. Therefore, they are justified in claiming that injunction be granted in their favour. 7. In rejoinder, Mr. Sunda has contended that during his lifetime, Deendayal had transferred his title of the property to the defendant-appellant. 8. Heard the learned counsel for the parties and perused the impugned order. 9. Admittedly, the dispute is over a property wherein on the one side, the plaintiffs-respondents claim that they are entitled to the property, even as a class second heirs of Deendayal, on the other side, the defendant-appellant claims that he is entitled to the property because of a Will of Jhabar Mal. The issue as to who would be entitled, and the shares to which they would be entitled to, needs to be decided by the trial Court. Therefore, obviously during the proceedings before the trial Court, the property needs to be protected. Hence, the trial Court was certainly justified in protecting the property and from restraining the appellant from transferring or from selling the property. However, as prima facie the defendant-appellant happens to be in possession of the said property, the trial Court was not justified in directing the status quo to be maintained. Hence, the trial Court was certainly justified in protecting the property and from restraining the appellant from transferring or from selling the property. However, as prima facie the defendant-appellant happens to be in possession of the said property, the trial Court was not justified in directing the status quo to be maintained. For, such a status quo order would prevent the appellant from maintaining and from carrying out repairs or to carryout further construction on the property. 10. The learned counsel for the defendant-appellant, in fact, has given an undertaking before this Court that in case any further construction were carried out upon the said property, it shall be carried out at the peril of the appellant himself. He has further given an undertaking before this Court that in case the plaintiffs-respondents were to succeed in their suit, the appellant would demolish the construction, so carried out by him, at his own cost. Therefore, in the interest of justice, this Court modifies the order dated 04-01-2011 to the limited extent that while the defendant-appellant is restrained from transferring or from selling the property in dispute, he is at liberty to carry out the repairs for the maintenance of the property, and he is at liberty to raise any further construction for his own personal benefit. However, in case the plaintiffs-respondents were to succeed in their suit, the defendant-appellant would be duty bound, in accordance with his undertaking given before this Court, to demolish any further construction raised by him after today. In case, he does not carry out the undertaking given by him before this Court, the plaintiffs-respondents would be free to file a contempt petition before this Court. 11. With these observations, this appeal is, hereby, partly allowed. Appeal partly allowed.