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2012 DIGILAW 612 (RAJ)

Maheshwari v. Kamla

2012-03-12

BELA M.TRIVEDI

body2012
JUDGMENT 1. - .The present appeal has been filed by appellants-plaintiffs under Order 43 Rules 1 & 2 of CPC against the order dated 16.3.2011 passed by the learned Addl. District Judge No.2, Sikar (hereinafter to be referred as the 'the lower court') in Civil Misc. Application No.21 of 2007, whereby the lower court has rejected the application of the appellants-plaintiffs seeking temporary injunction under Order 39 Rules 1 & 2 of CPC. 2. In the instant case, it transpires that the appellants-plaintiffs have filed suit seeking various reliefs of declaration, partition, permanent injunction, cancellation of sale deed and mortgage deed in respect of the suit property before the lower court. Appellants had also filed the application seeking temporary injunction against the respondents-defendants in respect of the said property. It was alleged interalia that the suit property was jointly purchased by the two brothers i.e. late Shri Narendra Prakash and late Shri Satya Prakash Srivastava from one lady Dr. Smt. Grace Haris in the year 1960 for a sum of Rs. 1,000/- by way of oral sale. The appellants happen to be the legal representatives of late Shri Narendra Prakash and respondents No.1 to 3 happen to be the legal heirs of late Shri Satya Prakash. According to the appellants-plaintiffs, the appellants were in possession of part of the suit premises and the electricity connection was also taken in the name of late Shri Narendra Prakash in the year 1966. However, the respondents No.1 to 3 created one mortgage deed dated 5.5.1960 forging the signatures of lady Dr. Grace Haris and thereafter sold out the said suit property to the respondents No.4 to 6 by executing the sale deed dated 7.12.2006. The appellants-plaintiffs thereafter filed a suit seeking various reliefs and also the application seeking temporary injunction under Order 39 Rules 1 & 2 of CPC. The said application having been dismissed by the trial court, the appellants have preferred the present appeal. 3. It has been sought to be submitted by learned counsel Mr. The appellants-plaintiffs thereafter filed a suit seeking various reliefs and also the application seeking temporary injunction under Order 39 Rules 1 & 2 of CPC. The said application having been dismissed by the trial court, the appellants have preferred the present appeal. 3. It has been sought to be submitted by learned counsel Mr. Anoop Dhand for the appellants that the husband of appellant No.1 and father of the appellant No.2, late Shri Narendra Prakash had purchased the suit property jointly with his brother late Shri Satya Prakash Srivastava from lady Doctor Smt. Grace Haris, in the year 1960 and Shri Narendra Prakash was in possession of part of the said premises since then, and that after the death of Shri Narendra Prakash, the appellants were in possession of the said premises. According to learned counsel for the appellants, the respondents No.1 to 3 who are the legal representatives of Shri Satya Prakash Srivastava created a false mortgage deed forging the signatures of lady Doctor Smt. Grace Haris and sold out the said property to respondents No.4 to 6. He further submitted that there were number of documents to show the possession of late Shri Narendra Prakash, and the respondents No.1 to 3 could not have sold out the said property to the respondents No.4 to 6. He also submitted that lower court had failed to appreciate that the prima facie case was in favour of the appellants-plaintiffs and if the application was not granted it would lead to further multiplicity of proceedings. 4. However, learned Sr. counsel Mr. R.K.Agrawal for the respondents No.1 to 3 supporting the impugned order passed by the lower court, submitted that the story of oral sale has rightly been not believed by the lower court. Pressing into service section 54 of Transfer of property Act, he further submitted that the property worth more than Rs. 100/- required registration. Relying on the decision of the Apex Court in the case of Prabhakaran and Ors v. M. Azhagiri Pillai (Dead) by L.Rs and Ors., AIR 2006 SC 1567 , he submitted that the mortgage deed dated 5.5.1960 executed by Dr.lady Grace Haris was in the nature of usufructuary mortgage and was registered one, and that after the expiry of 30 years of period, the concerned respondents had become the absolute owners. He also submitted that the said late Shri Narendra Prakash being the brother of late Shri Satya Prakash was permitted to stay in part of the said premises by way of licensee and that the appellants could not claim any right over the said property. He also submitted that the respondent no.1 to 3 have sold out the said premises to respondents No.4 to 6 by way of registered sale deed, and the lower court has rightly rejected the application of the appellants-plaintiffs. 5. From the submissions made by the learned counsels and the documents on record, it emerges that the appellants-plaintiffs have challenged the mortgage deed dated 5.5.1960 allegedly executed by lady Dr.Grace Haris in favour of the late Shri Satya Prakash Srivastava,husband of respondent No.1 and father of respondents No.2 and 3. The appellants-plaintiffs have also challenged the sale deed dated 7.12.2006 executed by the respondents No.1 to 3 in favour of respondent Nos. 2 to 6. As per the case of the appellants-plaintiffs, the said lady Dr. Smt. Grace Haris had sold out the property in question by way of oral sale in 1960. In the opinion of this court, the lower court has rightly considered the provisions contained in section 54 of the Transfer of Property Act for holding that the property worth were not more than Rs. 100/- could not be sold without executing the registered sale deed. As rightly submitted by learned counsel Mr. Agrawal, if the mortgage deed dated 5.5.1960 was concocted by the concerned respondents forging the signatures of Dr. Grace Haris, it was Dr. Haris or her legal representatives who would be the aggrieved parity entitled to challenge such allegedly forged mortgage deed. Since the said mortgage deed is registered one and more than 30 years old, there is no substance in the submission of learned counsel Mr. Dhand for appellants that late Shri Narendra Prakash and late Shri Satya Prakash had jointly purchased the suit premises from the said Dr. Haris by way of oral sale in the year 1960. 6. The lower court has neither believed the prima facie case of the appellants nor their possession of the suit premises. Dhand for appellants that late Shri Narendra Prakash and late Shri Satya Prakash had jointly purchased the suit premises from the said Dr. Haris by way of oral sale in the year 1960. 6. The lower court has neither believed the prima facie case of the appellants nor their possession of the suit premises. It is needless to say that any observations made by the lower court while deciding the application for temporary injunction would only be the prima facie observations, which would not come in the way of the lower court in deciding the suit finally. Therefore,the apprehension of the learned counsel for the appellants that the said observations made in the impugned order would effect the trial of the suit also has no substance. There being no illegality or perversity in the impugned order passed by the lower court, this court is not inclined to interfere with the said order. However, it is clarified that any transfer or creation of third party interest in the suit property during the pendency of the suit shall be subject to final outcome of the suit. 7. With these observations, the present appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.Appeal dismissed. *******