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2012 DIGILAW 1982 (RAJ)

Barkat Khan v. Shimla @ Seema

2012-09-19

R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—The appellants, Barkat Khan and Ram Kumar, are aggrieved by the order dated 27.7.2012, passed by the Additional District Judge, Bhadra, District Hanumangarh, whereby the learned Judge has allowed the temporary injunction application filed by the respondent plaintiff, Shimala @ Seeema, under Order 39 Rules 1 & 2 CPC. 2. Briefly, the facts of the case are that Smt. Shimla @ Seema had filed a suit for permanent injunction and cancellation of sale-deed dated 4.7.2012 wherein she had claimed that she is the daughter of appellant Floating Frame No. 2, Ram Kumar. She further claimed that her family owns an agricultural land measuring about nine bighas. The said land is ancestral in nature. However, her father, Ram Kumar, has sold the said land to Barkat Khan (appellant No.1 before this Court), by sale-deed dated 4.7.2012. According to her, as the Karta of the family, Ram Kumar did not have the right to sell the ancestral land. Along with the suit, she filed an application under Order 39 Rule 1 & 2 CPC wherein she claimed that she is in possession of the land in dispute. She further claimed that on the said land, there is a house consisting of two rooms, veranda, kitchen and bathroom, which is under her possession. Therefore, she prayed for temporary injunction against Barkat Khan and Ram Kumar. 3. Barkat Khan filed a reply and claimed that he had bought the said land through a registered sale-deed on 4.7.2012. At the time of registering of the sale-deed, the possession of the land was given to him. He further claimed that despite the fact that respondent-plaintiff is a married daughter, she has ille-gally trespassed on the land. Thus, she is not entitled to injunction against him. 4. Ram Kumar claimed that the land was self acquired property and denied the fact that it was an ancestral property. He further claimed that he had the right to legally sell the land in favour of Barkat Khan. 5. After hearing both the parties, by order dated 27.7.2012, the learned Judge granted the temporary injunction in favour of respondent-plaintiff. Hence this appeal before this Court. 6. Mr. Nitin Trivedi, the learned counsel for the respondent-plaintiff, has raised the following contentions: firstly, the respondent has not produced any evidence to establish the fact that the property is ancestral one. 5. After hearing both the parties, by order dated 27.7.2012, the learned Judge granted the temporary injunction in favour of respondent-plaintiff. Hence this appeal before this Court. 6. Mr. Nitin Trivedi, the learned counsel for the respondent-plaintiff, has raised the following contentions: firstly, the respondent has not produced any evidence to establish the fact that the property is ancestral one. Secondly, she has not shown any evidence to establish that she is in possession of the land in dispute. Thus, she has failed to establish a strong prima facie case in her favour. Despite the absence of existence of a prima facie case, the learned Judge has granted injunction in her favour. Thirdly, since the possession follows the title, since the title has been transferred from Ram Kumar to Barkat Khan, the Court should presume that the possession is with Barkat Khan, appellant No. 1. Fourthly, the respondent-plaintiff has already filed a suit for declaration of her share in the ancestral property before the SDO. Until and unless, she wins in the said revenue suit, she does not have the right to challenge the sale-deed. For, she has not filed any suit for possession and declaration. Lastly, even if she were to win, she would be entitled to one-fifth share. Therefore, the injunction could not have been passed against the entire property. 7. On the other hand, Mr. M.R. Choudhary, the learned counsel for the respondent-plaintiff, has raised by the following contentions before this court: firstly, Jamabandi has been submitted before the trial Court in order to establish the fact that the land was ancestral in nature. Moreover, according to reply, submitted by the respondent's father, he had claimed that the land is in the name of his uncle and him. This also points to the facts that the land is ancestral land in nature. 8. Secondly, the respondent had submitted a large number of affidavits of her neighbours and of her husband in order to show that she is in possession of thee land in dispute. 9. Thirdly, as the respondent is a member of a Hindu Undivided family, as a daughter, she has a right to stake her claim in the ancestral property. 8. Secondly, the respondent had submitted a large number of affidavits of her neighbours and of her husband in order to show that she is in possession of thee land in dispute. 9. Thirdly, as the respondent is a member of a Hindu Undivided family, as a daughter, she has a right to stake her claim in the ancestral property. Since according to the respondent, the appellant No. 2 had sold the land illegally, as the sale of the land was not in the interest of the family, the respondent has a right to challenge the same. Thus, it is not necessary that the respondent has to file a suit for declaration or for possession. 10. Fourthly, since the appellant No. 2 claims that the land was in fact bought by him and his uncle from a Jagirdar (as claimed in reply to the T.I. application), under Section 106 of the Evidence Act, this fact is known only to him. Therefore, he should have submitted the registered sale-deed through which he had bought the said land from the Jagirdar. But, he failed to do so. Thus, the land is not a self-acquired property. It is an ancestral property. 11. Fifthly, the appellant No. 2 is blowing hot and cold simultaneously with regard to his title to the land. Although, in his reply to the T.I. application, he claims that the land was bought by him and his uncle from Jagirdar, in the sale-deed he claims to be the absolute owner of the land. Thus, while on the one hand, he claims that the land is jointly owned by him and his uncle, on the other hand, in the sale-deed he claims that he is the sole owner of the land in dispute. Therefore, appellant No. 2 has failed to show even prima faice that the land is self acquired property and not an ancestral one. 12. Sixthly, the appellant No. 1 has taken an absurd position. For, on the one hand, he claims that the respondent-plaintiff has trespassed on his land thereby meaning that she is in possession of the land; yet, on the other hand, he would like the Court to presume that he is in possession of the land, as possession follows the title. However, both these stands clearly prove the fact that appellant No.1 is not in possession of the land in dispute. However, both these stands clearly prove the fact that appellant No.1 is not in possession of the land in dispute. In fact, the possession is with respondent-plaintiff. Therefore, the stand taken by the appellant No. 1 strengthens the case of the respondent-plaintiff that she is in possession of the land. 13. Seventhly, since a triable issue has been raised by the plaintiff, obviously the plaintiff has a strong prima facie case in his favour. Therefore, according to the learned counsel, the learned Judge was justified in granting the injunction in favour of the respondent plaintiff. Relying on the case of Smt. Vimla Devi vs. Jang Bahadur (1977 RLW 326) the learned counsel has pleaded that the scope of interfering with the temporary injunction, the order is limited one. It should be interfered with only when the order has been passed in a mala fide manner or perversely, or arbitrarily. However, in the present case, the learned Judge passed the impugned order after analyzing the evidence and the stand taken by the parties to a limited extent. 14. Heard the learned counsel for the parties and perused the impugned order. 15. Undoubtedly, the married daughter of a family has share in the ancestral property of her paternal family. Therefore, the respondent-plaintiff certainly has a right to challenge the alleged sale of ancestral land. The issue, whether the land in dispute is actually ancestral property or not, can be decided only after the completion of the trial. Suffice it to say that at the time of dealing with the application of temporary injunction, the trial Court is concerned only with the existence of a prima facie case in favour or against the plaintiff. Although the learned counsel for the appellants has claimed that no Jamabandi was submitted by the respondent-plaintiff, but the fact that she has submitted Jamabandi before the trial Court has been noted by the learned Judge in the impugned order. 16. Secondly, the appellant No. 2 has shifted his stand repeatedly with regard to the nature of the property and with regard to of his ownership. According to his reply filed in the T.I. application, he claims that the land is dispute was brought by his uncle, Kanshiram, and him from a Jagirdar. 16. Secondly, the appellant No. 2 has shifted his stand repeatedly with regard to the nature of the property and with regard to of his ownership. According to his reply filed in the T.I. application, he claims that the land is dispute was brought by his uncle, Kanshiram, and him from a Jagirdar. However, neither he gives the date when the said land was brought, nor makes a mention whether the said land was bought through a registered sale-deed or not? Since the factum of date of buying the said land from the said Jagirdar would be in the knowledge of appellant No. 2, he was duty bound to reveal the exact date and to submit any document that would buttress his case. However, he has failed to discharge the burden of proof as imposed by Section 106 of the Evidence Act. Moreover, in the sale-deed dated 4.7.2012, he claims to be the absolute owner of the land in dispute. Since according to him, the land in dispute was jointly bought by his uncle and him, it is rather surprising that in the sale deed he claims to be absolute an owner. Even before this court, the appellant No. 2 has not been able to reveal as to when the land in dispute was bifurcated and partitioned between him and his uncle. Therefore, his stand that it is a self-acquired property is on a shaky ground. 17. Furthermore, according to the affidavits of some of the persons submitted by the respondent-plaintiff, it clearly states that the land in dispute was inherited by the uncle of appellant No.2, Kashiram, from his father, and by Ram Kumar from his grand-father. Thus, prima facie, it appears that the land in dispute is, indeed, ancestral in nature. Therefore, the contention raised by the learned counsel for the appellants that the ancestral nature of the land has not been established is without any merit. 18. As far as the possession is concerned, the stand taken by appellant No. 1 strengthens the plea of the respondent-plaintiff. According to appellant No.1, the plaintiff-respondent had trespassed on to the land, after he had bought the land from appellant No. 2. Therefore, apparently on the day of filing of the suit, she was in possession of the land. 18. As far as the possession is concerned, the stand taken by appellant No. 1 strengthens the plea of the respondent-plaintiff. According to appellant No.1, the plaintiff-respondent had trespassed on to the land, after he had bought the land from appellant No. 2. Therefore, apparently on the day of filing of the suit, she was in possession of the land. Moreover, since he would like the Court to presume his possession, obviously he is not in possession of the land in reality. His possession is only on paper. Therefore, the learned Judge was certainly justified in concluding that the possession is with the respondent plaintiff. 19. Considering the twin facts that prima facie the land in dispute appears to be ancestral property, considering the fact that the respondent-plaintiff is in possession of the land, the learned Judge was certainly justified in concluding tat she had strong prima facie case in her favour. There is no evidence on record to show that the learned trial Court has acted arbitrarily or perversely capriciously or in disregard of sound legal principles or without considering all the relevant records. 20. Since the respondent-plaintiff has the right to challenge the sale of ancestral property, since prima facie the land in dispute is ancestral in nature, since prima facie she is in possession of the property, she is well within her right to file suit for possession and cancellation of sale deed. Therefore, the contention raised by the learned counsel for the appellants that she could not have done so until and unless she wins the revenue suit for declaration of her share is misplaced. 21. Since the plaintiff-respondent has raised the certain issues which are triable, therefore, she has strong prima facie case in her favour. Moreover, in case she were to be ejected out of her home and land, it would cause irreparable loss to her. Moreover, since she is in possession of the land, since prima facie she has been cultivating the land, the balance of convenience is also in her favour. 22. In case Smt. Vimla Devi (supra), this court had clearly held as under:- "The order refusing temporary injunction is of a discretionary character, Ordinarily Court of appeal will not interfere with the exercise of discretion passed by the trial Court and substitute for its own discretion. 22. In case Smt. Vimla Devi (supra), this court had clearly held as under:- "The order refusing temporary injunction is of a discretionary character, Ordinarily Court of appeal will not interfere with the exercise of discretion passed by the trial Court and substitute for its own discretion. The interference with the discretionary order, however, may be justified if the lower Courts acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all the relevant records." 23. Therefore, this Court does not find any illegality or perversity in the impugned order. This appeal devoid of any merit; it is, hereby, dismissed. 24. However, by way of abundant caution, it is clarified that any observation made by this Court, mentioned above, are only prima facie in nature. They are not binding on the learned trial Court. The learned Judge is expected to appreciate the evidence as produced by both the parties, and to pass his final judgment and decree strictly in accordance with law.