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2014 DIGILAW 346 (RAJ)

Tera Chand v. Shanti Devi

2014-02-03

ALOK SHARMA

body2014
JUDGMENT 1. -This appeal has been filed against the order dated 26-9-2012 passed by the Additional District Judge (Fast Track) No.2, Jaipur Metropolitan, Jaipur whereby the appellants-defendants (hereinafter 'the defendants') were directed to maintain status quo as obtaining on the date of the order with regard to suit property Plot No.55, Kamla Nehru Nagar, Hasanpura C, NBC Road Jaipur. 2. The facts of the case are that the plaintiffs-respondents (hereinafter 'the plaintiffs') filed a suit for partition and permanent injunction with regard to suit property Plot No.55, Kamla Nehru Nagar, Hasanpura C, NBC Road Jaipur. The case of plaintiffs was that the aforesaid suit property was in the ownership of Lala Ram who had four sons, Ishwar Lal, Tara Chand, Puranmal and Mahesh Kumar. It was submitted that following the death of Lala Ram the suit property under the provisions of Hindu Succession Act devolved in equal measures between his four sons including Ishwar Lal, who had since expired and whose successors and legal heirs the plaintiffs were. Yet the plaintiffs were being denied their lawful share in the suit property of late Lala Ram which was in the occupation of the defendantsthe three other sons of Lala Ram. It was prayed that consequently the suit for partition be decreed and the defendants be restrained from alienating, altering or otherwise creating third party right over the suit property. Along with suit an application under Order 39 Rules 1&2 CPC was filed by the plaintiffs. 3. On service of the plaint, the defendants filed a written statement denying the allegation that the suit property Plot No.55, Kamla Nehru Nagar, Hasanpura C, NBC Road Jaipur was joint family property devolving on all four sons of late Lala Ram. It was stated that under oral partition the suit property Plot No.55, Kamla Nehru Nagar, Hasanpura C, NBC Road Jaipur came to the share of defendant Mahesh Kumar. The other defendant in the suit i.e. Tara Chand and Puran Mal supported the case of the defendant Mahesh Kumar. 4. It is important to note that the three daughters of late Lala Ram were not initially impleaded in the partition suit. However, subsequently on objection, the three daughters have been impleaded and notices of the suit have been issued to them. 5. 4. It is important to note that the three daughters of late Lala Ram were not initially impleaded in the partition suit. However, subsequently on objection, the three daughters have been impleaded and notices of the suit have been issued to them. 5. The trial court taking into consideration that the suit property Plot No.55, Kamla Nehru Nagar, Hasanpura C, NBC Road Jaipur admittedly first belonged to the late Lala Ram and had prima facie not been formally partitioned allowed the application of the plaintiffs under Order 39 Rules 1&2 CPC and directed the defendants to maintain status quo. 6. Mr. G.P. Sharma, learned counsel for the defendants submitted that an order of injunction ought to have been refused to a party who was admittedly not in possession. He submitted that admittedly the defendant Mahesh Kumar is in possession of the suit property for the last several years and had expanded substantial amounts in constructing a RCC structure over the suit property but in terms of the impugned order of status quo passed by the court below he is being denied the completion of construction and restrained from using the property which serves no purpose for the plaintiffs. It was submitted that the learned trial court failed to balance the equities in passing the impugned order of status quo and not providing for restitution in the event the suit for partition laid by the plaintiffs were to be finally dismissed. It was submitted that ends of justice would have been met in the event the defendant Mahesh Kumar, admittedly in exclusive possession of suit property Plot No.55, Kamla Nehru Nagar, Hasanpura C, NBC Road Jaipur were allowed to use the property with the condition of restraining him and other defendants from transferring, alienating or otherwise creating third party rights over the suit property. 7. Counsel for the respondent supported the impugned order. 8. 7. Counsel for the respondent supported the impugned order. 8. Having heard the submission of learned counsel for the parties and taking into consideration the fact that the defendant Mahesh Kumar is in possession of the suit property Plot No.55, Kamla Nehru Nagar, Hasanpura C, NBC Road Jaipur in my considered view equities would be balanced and the ends of justice met in this court modifying the impugned order dated 26-9-2012 passed by the trial court and limiting the restraint on the defendants against the transferring, alienating or otherwise creating third party right over the suit property Plot No.55, Kamla Nehru Nagar, Hasanpura C, NBC Road Jaipur during the pendency of the suit for partition. 9. It is made clear that no equity would work in favour of the defendants in the event the suit for partition were to be decreed by the trial court. It is also made clear that the defendants would not entitled to any compensation for demolition/ removal of their construction in the event the judgment and decree of the trial court in the pending suit were to require so. Similarly no other claim for cost of construction made at the instance of the defendants would also be entertained. 10. Consequently the civil miscellaneous appeal is disposed off with the direction that the defendants would be only restrained from transferring, alienating or creating third party right over the suit property Plot No.55, Kamla Nehru Nagar, Hasanpura C, NBC Road Jaipur during pendency of the suit. If the plaintiffs were to succeed in the suit, the demolition of construction or any part thereof would be to the account of defendants alone. They would not be entitled to any compensation on any count. 11. The trial court is directed to decide the suit expeditiously and in any event not later than twenty four months from the date of receipt of certified copy of this order. Adjournments be not granted except on a written application for the purpose detailing reasons for adjournments sought. Reasoned order/s on the adjournment application be passed. 11. The trial court is directed to decide the suit expeditiously and in any event not later than twenty four months from the date of receipt of certified copy of this order. Adjournments be not granted except on a written application for the purpose detailing reasons for adjournments sought. Reasoned order/s on the adjournment application be passed. The trial court also be guided by the observations of the Hon'ble Supreme Court in the case of Shiv Cotex v. Tirgun Auto Plast (P) Ltd., (2011) 9 SCC 678 , wherein the Hon'ble Supreme Court has held that adjournment should be ordinarily limited to three/ four times in the life of a suit.The appeal stands disposed of accordingly.Appeal disposed of. *******