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2014 DIGILAW 1212 (RAJ)

Ramji Lal Parashar v. Vimla Devi Anr.

2014-05-23

ALOK SHARMA

body2014
JUDGMENT 1. - This civil misc. appeal arises from the order dated 23.03.2013, passed by the Additional District & Session Judge, Bharatupr partially allowing an application under Order 39, Rule 1 and 2 CPC filed by the plaintiff-respondent No.1 (hereinafter 'the plaintiff') in a suit for partition and inter alia restraining the defendants-appellants (hereinafter defendant Nos.1 & 2-as described before the trial court) and defendant-respondent No.2 (hereinafter defendant No.3-as described before the trial court) from alienating, transferring or otherwise creating third party rights in the suit property. 2. Counsel for the defendant Nos. 1 & 2 has submitted that the plaintiff is the daughter of defendant No. 1. It was submitted that part property in issue in the suit devolved on the defendant No.1 in the year 1986 on the death of his father Ramcharan and mutation was also opened in his name in the year 1989. Counsel submits that such property in issue in the suit was the self acquired property of Ramcharan. Therefore in terms of Section 8 of the Hindu Succession Act, 1956 (hereinafter 'the Act of 1956') read with Schedule I thereof to the extent of devolution on the defendant No.1 on Ramcharan's death he become the absolute owner thereof. It was submitted that other properties detailed in the suit were self acquired by the defendant No.1 from his own resources individually in his own name along with his brothers and consequently no part of the property to that extent in his ownership or possession partook the character of ancestral property. It was submitted that the plaintiff was married in the year 1987 and had been residing in her matrimonial home for last about 25 years. Yet ill-advised as she was, she laid the suit for partition and permanent injunction qua properties owned by the defendant No.1 singularly in his own right, in the year 2012 claiming the property to be ancestral property and the benefit to herself as a coparcener after the amendment to Section 6 of the Act of 1956 effective 09.09.2005. Counsel submits that not an iota of evidence was produced before the trial court by the plaintiff wherefrom it could be even prima facie established that the suit property was in any way ancestral property to which the plaintiff as coparcener effective 09.09.2005 had any right, claim, interest and/or title. Counsel submits that not an iota of evidence was produced before the trial court by the plaintiff wherefrom it could be even prima facie established that the suit property was in any way ancestral property to which the plaintiff as coparcener effective 09.09.2005 had any right, claim, interest and/or title. Delay of about seven years even since the amendment aforesaid effective 09.09.2005 has also been pointed out. 3. Counsel for the plaintiff has supported the order of the trial court. 4. Mr. Satish Kumar appearing for the defendant No. 3, Surajbhan, submits that the defendant No. 3 is a bona fide purchaser of part of the property in issue in the suit from the defendant No.1 having exercised due diligence. Valuable consideration for the said property to the extent of his purchase has been paid and possession thereof obtained. Counsel has supported the case of the defendant Nos.1 & 2. 5. I have heard the counsel for the parties and perused the impugned order dated 23.03.2013, passed by the trial court. 6. Oddly the impugned order does not refer to any material produced before the trial court in support of the contention of the plaintiff that the property standing in the name of the defendant No.1 partook the nature of ancestral property. Mere averments of the plaintiff in a suit filed in 2012 in this regard without anything more have been taken to be the foundation for passing the interim order of restraint on alienation, sale, transfer or otherwise creation of third party rights in the suit property. The trial court did not take into consideration the fact that the certain properties standing to the name of the defendant No.1 were evidently his self acquired property and the remainder had devolved on the defendant No.1 as self acquired properties of his father Ramcharan on his death under Section 8 of the Act of 1956 conferring on the defendant No.1 absolute proprietary rights thereon. The objections of the defendants in the suit before the trial court, with regard to the very maintainability of the said suit as laid-without any evident cause of action-were also sidestepped by the trial court. 7. The courts have repeatedly ad nauseam stated that injunction can only be granted in the event of a prima facie case, balance of convenience, irreparable loss being made out in favour of the plaintiff. 7. The courts have repeatedly ad nauseam stated that injunction can only be granted in the event of a prima facie case, balance of convenience, irreparable loss being made out in favour of the plaintiff. A prima facie case entails a substantial triable case in favour of the plaintiff and not any vacuous assertion, balance of convenience requires the balance of convenience/inconvenience to be suffered by the parties to the litigation weighed on a comparative basis on the facts overall obtaining in the case including the fact of delay in approaching the court and irreparable loss pertains to the inability to compensate a party to a litigation by way of damages at the end of the trial. In disputes related to immovable property serious rights of the parties to litigation are involved. Merely because a suit has been laid qua an immovable properties, it cannot by itself and without anything more entail grant of an injunction either by way of status quo or even by a purportedly innocuous order of restraint on the transferring, alienating or creation of third party rights in the immovable property. The right to enjoy property includes the right to make a sale thereof. The right to sale is inherent in the right to property itself as provided under Article 300A of the Constitution of India-aside of civil law. In these circumstances, an order of restraint of whatever nature with regard to use, enjoyment or right to alienate the immovable property has to be passed with due application of mind with reference to the facts pleaded, other material on record and the obtaining law. This appears to have not been so done in the impugned order. The impugned order has been passed merely on the factum of a suit for partition, permanent injunction having been filed without anything more, more particularly the absence of any credible evidence with regard to the nature of the suit property being ancestral and overlooking the fact that the suit property stood mutated in the land record in the sole ownership of the defendant No.1 since 1989 following Ramcharan's death in 1986 and that even after the amendment to Section 6 of the Act of 1956 on 05.09.2005 effective 09.09.2005, the plaintiff's suit was laid in 2012. 8. 8. Counsel for the plaintiff has submitted that merely an order of restraint on the transferring, alienating and creation of third party rights has been passed. He submits that the defendants, particularly defendant No.3, have not been restrained from the use or enjoyment of the property in any other manner whatsoever. He submits that in this view of the matter, maintaining the subject matter of the suit was in the interest of justice and no error can be attributed to the impugned order dated 23.03.2013, passed by the trial Court, on this count. 9. I am however of the view that in the facts obtaining there was no prima facie material before the trial court with regard to the ancestral nature of the suit property as agitated by the plaintiff. No regard was had to the fact by the trial court that Ramcharan died in 1986 and the property was mutated solely in the name of Ramji Lal Parashar, defendant No.1, in his individual capacity in 1989. No regard was also had to the fact that the plaintiff is a married daughter of defendant No.1 Ramji Lal Parashar, married about 25 years ago and was seeking to agitate her purported right as a coparcener belatedly against her own father in 2012 who was then about 75 years of age. In my considered view, the discretion by the trial court was thus not in the facts of the case properly exercised in passing an order of restrain on alienation, transfer etc. qua a bona fide purchaser without notice for valuable consideration and in possession i.e. defendant No.3. The probabilities of the case have not been taken into consideration, nor the obtaining law correctly addressed. An order of restraint on the transferring, alienating or creation of third party rights in the suit property, in my considered view, was not warranted in the facts of the case and was not a just and proper exercise of discretion of the trial court. Further, in any event Section 52 of the Transfer of Property Act, 1882 (hereinafter 'the Act of 1882') and the doctrine of lis pendens ought to have been found of adequate protection of whatever the right/interest, the plaintiff claimed in the suit property. On the said legal doctrine any transaction qua the suit property subsequent to the filing out the suit would abide by its outcome. 10. On the said legal doctrine any transaction qua the suit property subsequent to the filing out the suit would abide by its outcome. 10. Consequently, the order dated 23.03.2013, passed by the trial court is set aside. It is however made clear that the provisions of Section 52 of the Act of 1882 and the doctrine of lis pendens incorporated therein would operate qua the suit property. The learned trial court is directed to expedite the hearing of the plaintiff's suit in view of the fact that the defendant No.1 is stated to be 75 years of age and the stage of the suit is stated to be at the plaintiff's evidence. The learned trial court is directed to dispose of the plaintiff's suit within a period of 12 months from the presentation of a certified copy of this order. 11. It is made clear that adjournments at the instance of any party would only be allowed on a written application and by way of a reasoned and speaking order. The observations of the Hon'ble Supreme Court in the case of M/s. Shiv Cotex v. Tirgun Auto Plat P. Ltd. & Others [2011 AIR SCW 5789] would also guide the trial court on the issue of adjournments. 12. The misc. appeal is allowed with the aforesaid observations. Stay application needs no address in view of the appeal itself being allowed.Appeal Allowed. *******