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2012 DIGILAW 114 (RAJ)

Manoj Kumar v. Dr. Babita

2012-01-10

DALIP SINGH

body2012
JUDGMENT 1. - Heard learned counsel for the petitioner, along with petitioner - Dr. Manoj Kumar Tiwari as well as learned counsel for the respondents. 2. This writ petition has been directed against the order passed by the learned Lower Appellate Court dated 10.04.2010 by which the appeal filed by the appellant against the dismissal of his application under Order 39 Rule 1 and 2 C.P.C. vide order dated 21.11.2006 by the learned trial Court was dismissed. 3. The parties are the husband and wife and the dispute relates to property situated at 31, Ganesh Colony, Mahesh Nagar, 80 ft. Road, Jaipur a residential house. In short, the petitioner, who is the plaintiff, claimed that he may not be dispossessed from the house in question. 4. The learned trial Court as well as learned Appellate Court dismissed the application and the appeal giving concurrent finding with regard to possession. 5. It appears that the suit was filed in the year 2006 seeking permanent injunction that the petitioner may not be dispossessed and at the same time that the respondent-defendants be restrained not to alienate the property or dismental or damage the same in any manner. 6. Subsequently, in the year 2008 the petitioner filed another suit seeking partition of the property in dispute, which is the house in question. 7. In the second suit also the application for temporary injunction was filed seeking the same relief that he may not be dispossessed from the house in question. 8. The learned trial Court dealing with the suit for partition dismissed the application under Order 39 Rule 1 and 2 C.P.C., vide order dated 24.04.2008 and the petitioner filed S.B. Civil Miscellaneous Appeal No.1897 of 2008 before this Court under Order 43 Rule 1 C.P.C. in which vide order dated 19.05.2008 while issuing notices to the respondents the parties were directed to maintain status-quo as it exists today i.e. on 19.05.2008. 9. Both the writ petition as well as the miscellaneous appeal had been listed together on the request of the learned counsel for the parties as the subject matter of both; the petition and the appeal is same. 10. The learned trial Court has found no prima-facie case in favour of the petitioner so far as the relief with regard to possession of the plaintiff-petitioner is concerned. Accordingly, vide order dated 21.11.2006 the application for temporary injunction was dismissed. 10. The learned trial Court has found no prima-facie case in favour of the petitioner so far as the relief with regard to possession of the plaintiff-petitioner is concerned. Accordingly, vide order dated 21.11.2006 the application for temporary injunction was dismissed. The learned Lower Appellate Court by the impugned order dated 10.04.2010 has also concurred with the findings given by the learned trial Court with regard to possession of the plaintiff-petitioner. The two findings being concurrent findings of fact recorded by the learned Courts below, the same do not call for any interference in writ jurisdiction under Articles 226/227 of the Constitution of India. 11. However, so far as the second prayer on the application under Order 39 Rule 1 and 2 C.P.C., is concerned regarding restraining the defendant-respondents, herein from alienating the property or damaging the same is concerned, I find that the two Courts below have not adverted to the aforesaid relief. 12. Mr. Mahesh Gupta, learned counsel for the respondent also does not dispute the fact that the two Courts below have not dealt with the alternate relief that has been prayed for by the petitioner. 13. The question regarding the applicability or the exception as provided under the Benami Transaction Act, 1986 on account of the alleged purchase of the property by the petitioner, as claimed by the petitioner in the name of the wife is concerned that is a matter to be decided at trial along with the suit in which the petitioner has claimed partition on the basis of declaration of his rights in the said property. Any observations made by the learned Lower Appellate Court and the learned trial Court in the suit for partition while deciding the applications for temporary injunction/appeal shall have no effect so far as the decision of the learned trial Court in both the suits while determining the issue with regard to the rights of the petitioner in the said suit. 14. 14. It is also made clear that the refusal of this Court to interfere with the impugned order in the writ jurisdiction does not amount to giving any finding on the merits of the contentions, which have been raised and it would be open for the parties to urge these contentions before the learned trial Court, which shall decide the same in accordance with law as regards the inter-se rights of the parties in the property in dispute. 15. Accordingly, the writ petition is dismissed. 16. As far as the civil miscellaneous appeal bearing No.1897 of 2008 is concerned, in view of the decision given in the writ petition based upon the findings of the learned trial Court under the order dated 21.11.2006 and confirmed by the learned Lower Appellate Court by the order dated 10.04.2010 the appeal also in view of the above findings fails and is, accordingly, dismissed subject to modification that the respondents shall not transfer, alienate or encumber the property in dispute any further or cause any damages to the property in dispute during pendency of the suit. 17. Consequently, the writ petition, miscellaneous appeal as well as both the stay applications stand dismissed.Petition and Misc Appeal Dismissed. *******