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2012 DIGILAW 1805 (RAJ)

Champalal v. Smt. Chandra Devi Anr.

2012-08-22

R.S.CHAUHAN

body2012
JUDGMENT 1. - The appellants are aggrieved by the order dated 17.2.2012 passed by the District Judge, Jodhpur, whereby the learned Judge has dismissed the appellants' application under Order 39, Rule 1 and 2 read with Section 151 C.P.C. 2. Brief facts of the case are that the appellants filed a suit for cancellation of sale deed and permanent injunction against the respondents with the averments in the plaint that Simartha, the grand-father of appellant No. 1 to 5, was the Khatedar of the disputed land bearing Khasra No. 620, measuring 56 bigha 10 biswa, at village Kanodiya Purohitan. Simratha expired in Samvat 2014. After his death, mutation No. 149 was sanctioned in the name of his son Gena Ram. However, thereafter name of Bhanwara Ram S/o Rama Ram was entered by the Patwari. When the appellants came to know about the wrong entry in the name of Bhanwara Ram, they filed a suit for correction of entries in the Revenue Court. In relation to that suit, appeal filed by Bhanwara Ram is pending before the Board of Revenue for Rajasthan at Ajmer. On the basis of wrong entry in the name of Bhanwara Ram, he sold 28 bigha 5 biswa land out of Khasra No. 620 measuring 56 bigha 10 biswa on 18.12.98 to respondent No.1, Smt. Chandra Devi. On the basis of the sale deed, husband of respondent No.1 threatened the appellants to get possession of half share of Khasra No.620. The appellants filed a suit for cancellation of sale deed and permanent injunction. The appellants also filed application under Order 39 Rule 1 and 2 C.P.C. for grant of temporary injunction. The application was accepted by the trial court on 30.4.2001; the respondents were restrained from interfering in the possession of appellants on the basis of sale deed. But on 26.7.2011, the husband and sons of respondent No.1 forcibly entered into the disputed land and destroyed the residential house of the appellants, and gave serious beating to the women of the appellants' family. The appellants lodged a FIR with the police, and also moved application under Order 39 Rule 2A C.P.C. before the trial court, which is pending. The trial court rejected the suit of appellants by judgment and decree dated 14.12.2011. The appellants filed an appeal before the District Judge, Jodhpur District against the judgment and decree dated 14.12.2011 passed by the Civil Judge, Jodhpur District. The trial court rejected the suit of appellants by judgment and decree dated 14.12.2011. The appellants filed an appeal before the District Judge, Jodhpur District against the judgment and decree dated 14.12.2011 passed by the Civil Judge, Jodhpur District. The appellants filed an application under Order 39 Rule 1 and 2 read with Section 151 C.P.C. along with the appeal to restrain the respondents from interfering with the appellants' possession. It was averred that the father of the respondent, Bhanwara Ram, was not the son of Simartha but he was son of Anada Ram, and the name Bhanwa Ram was wrongly entered in the revenue record as successor of Simartha. The wrong entry in the revenue record, bestows no authority on him to sell the disputed land. On the basis of unauthorised sale deed, respondent No.1 has no right to interfere in the possession of the appellants on disputed land. However, vide order dated 17.2.2012, the learned Judge dismissed the application. Hence, this appeal before this Court. 3. Mr. C.R. Jakhar, the learned counsel for the appellants, has vehemently contended that the dispute is related to sale of a parcel of land. During the course of the trial, the appellants had a temporary injunction in their favour. In case temporary injunction were not granted during the pendency of the appeal, the respondents are likely to alienate the land in favour of a third party. This would naturally complicate the issue and may lead to further litigation. Therefore, according to him, in the interest of justice, both the parties should be directed to maintain status quo. 4. On the other hand, Mr. Sajjan Singh, the learned counsel for the respondents, has contended that although the respondents do not have difficulty in the status quo order, but in case they were to develop their land, permission may be given to them to do so. Moreover, the respondents do not wish to alienate the land. 5. Heard the learned counsel for the parties, and perused the impugned order. 6. A bare perusal of the impugned order clearly reveals that the learned Judge has not gone into the three factors for grant of or refusal of the temporary injunction. The learned Judge has merely concluded that the respondents happened to be "a true owner", although this issue is yet to be decided by the appellate court. 7. 6. A bare perusal of the impugned order clearly reveals that the learned Judge has not gone into the three factors for grant of or refusal of the temporary injunction. The learned Judge has merely concluded that the respondents happened to be "a true owner", although this issue is yet to be decided by the appellate court. 7. Considering the fact that a parcel of land is involved, considering the fact that there is a dispute between the parties as to who is "the true owner" of the said land, considering the fact that in case the respondents were not restrained from alienating the property, they may do so, it would be in the interest of justice that both the parties are directed to maintain the status quo as of today. However, in case, the respondents were to establish the fact that they are in possession of the property, as the said fact is being questioned by the appellants, and in case they would like to develop the land in dispute, they may do so after seeking the permission of the first appellate court. The first appellate court is directed to pass an order on such an application moved by the respondents only after seeking report of a Commissioner appointed by it. The appeal is, hereby, allowed. The order dated 17.2.2012 is, hereby, quashed and set aside in the aforementioned terms.Appeal allowed. *******