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2015 DIGILAW 458 (RAJ)

Chhanwar Singh Mali v. Gyan Singh Mali

2015-02-18

VINEET KOTHARI

body2015
JUDGMENT : Vineet Kothari, J. Both the these civil misc. appeals are being disposed of by this common order. 2. The appellant/plaintiff, Chhanwar Singh S/o Mangala Ram @ Mangal Singh, has preferred the Civil Misc. Appeal S.B. Civil Misc. Appeal No.1992/2012 assailing the impugned order dated 13.09.2012 passed by learned Additional District and Sessions Judge No.2, Jodhpur Metropolitan in Civil Misc. Case No.36/2009- Chhanwar Singh S/o Mangala Ram @ Mangal Singh v. Gyan Singh S/o Mangala Ram @ Mangal Singh & Ors., whereby the application filed by the appellant/plaintiff for temporary injunction under Order 39, Rule 1 and 2 CPC, has been rejected. 3. A coordinate bench of this Court after hearing the counsel for both the parties on 26.09.2012 passed the following interim order in the said CMA No.1992/2012: "Issue notice to the respondents No.1 and 2. Rule is made returnable within a period of four weeks. Meanwhile, the parties are directed to maintain status quo with regard to land situated in Village Pnjala, District: Jodhpur in Khasra No.299/1 ad measuring 3 bigha, 1 biswa, Khasra No.304 ad measuring 8 bigha, 9 biswa, Khasra No.299 ad measuring 3 bigha, and Khasra No.305/1 ad measuring 7 bigha, 10 biswa as of today i.e. 26.9.2012 for a period of six weeks. List this case after completion of 4th week." 4. The connected Civil Misc. Appeal No.2862/2013-Roop Singh @ Roopa Ram S/o Kripa Ram @ Kripu v. Chhawar Singh S/o Magala Ram @ Mangal Singh, has been filed by Roop Singh @ Roopa Ram, being aggrieved by the later order dated 31.10.2012 passed by the same learned trial court of A.D.J. No.2, Jodhpur Metropolitan, in Civil Misc. Case No.24/2012, by which application filed by the applicant, Roopa Ram, under Order 39, Rule 1 and 2 read with Section 151 CPC was also rejected. The said rejection of the temporary injunction application by the learned trial court was done mainly for the reason that in the aforesaid connected appeal (CMA No.1992/12), the aforesaid interim order was passed by a coordinate bench of this Court on 26.09.2012. The said rejection of the temporary injunction application by the learned trial court was done mainly for the reason that in the aforesaid connected appeal (CMA No.1992/12), the aforesaid interim order was passed by a coordinate bench of this Court on 26.09.2012. The said reasons given by the learned trial court in the order dated 31.10.2012 are quoted herein below: ^^ ^^geus mHk; i{kksa }kjk bl fopkj.kh; fcUnq ds rgr fn;s x, rdksZa ij izLrqr uthjksa ij /;kuiwoZd] llEekuiwoZd fopkj foospu djhA loZizFke rks ns[kus esa vkrk gSA fd izkFkhZ }kjk izLrqr uthjksa dk lkj ;g gS fd vxj lCtsDV eSVj vkKk nsrk gS rks fcuk dkmUVj Dyse ds fdlh Hkh okn dk izfroknh crkSj izkFkhZ izkFkZuk&i= vLFkkbZ fu"ks/kkKk is'k dj ldrk gSA vxj ge ekStwnk okn dk /;kuiwoZd fo'ys"k.k djrs gSa rks Lo;a izkFkhZ us crkSj izfroknh ;g mtj mBk;k gS fd vizkFkhZ dks crkSj oknh ;g okn izLrqr djus dk bl U;k;ky; esa {ks=kf/kdkj izkIr ugha gSA ;g {ks=kf/kdkj rks jktLo U;k;ky; dks gh izkIr gSA vc crkSj izkFkhZ] izfroknh :iflag tfj;s ;g izkFkZuk&i= vLFkkbZ fu"ks/kkKk ugha dj ldrk fd mls bl U;k;ky; dk {ks=kf/kdkj izkIr gksA ,d gh i{kdkj tokc nkok esa o viuh vksj ls is'k izkFkZuk&i= vLFkkbZ fu"ks/kkKk esa gks LVs.M ugha ys ldrk] ;kfu ,d lkFk Cyks gkWV dksYM ugha dj ldrkA nwljh vksj ge ;g Hkh ikrs gSa fd izkFkhZ us vius tokc nkok esa Li"V :i ls ;g IyhfMax ugha yh gS fd og viuh [kkrsnkjh dh Hkwfe ij pkjnhokjh dk fuekZ.k djk jgk gks ;k djuk pkgrk gksA ,d izdkj ls ;g ,d u;k lCtsDV eSVj gS vkSj fcuk IyhfMaXl ds tks IyhfMaXl eq[; nkok esa gksuh pkfg;s] vc ;g izkFkZuk&i= vLFkkbZ fu"ks/kkKk is'k ugha gks ldrkA ge ;g Hkh ikrs gSa fd ekuuh; jktLFkku mPp U;k;ky; us izkFkhZ dh Hkwfe dks NksM+dj tks Hkwfe izkFkhZ viuh crkrk gS] vU; fookfnr Hkwfe ij ;FkkfLFkfr dk;e j[kus ds vkns'k fn;s gSa vHkh ekuuh; jktLFkku mPp U;k;ky; dks iw.kZr;k okn rkehy uksfVl vU; i{kdkj vLFkkbZ fu"ks/kkKk ds fcUnq dks r; djuk gSA ;g U;k;ky; vxj izkFkhZ dk izkFkZuk&i= Lohdkj dj ysrh gS rks fLFkfr esa ifjorZu vk ldrk gS] tks ifjorZu ekuuh; jktLFkku mPp U;k;ky; ds vkns'k ds foijhr gks ldrk gS also propriety demands that once Hon'ble Order is seized of the matter, subordinate Court should not pass such order so as to alter the factual situation. bl vksj vizkFkhZ }kjk izLrqr uthj n`f"Vxkspj Hkh gSA mijksDr of.kZr foopsu] fo'ys"k.k ls Li"V gS fd izkFkhZ viuk izFke n`"V;k dsl lkfcr djus esa foQy jgk gSA vr% ;g fopkj.kh; fcUnq fo:) izkFkhZ cgd vizkFkhZ fuf.kZr fd;k tkrk gSA In Kashi Math Sansthan v. Shrimad Sudhindra Thirtha Swmay AIR 2010 SC 296 it has been held that question of considering balance of convenience or irreparable loss and injury to the party does not arise if party fails to prove prima case. ^^gLrxr izdj.k esa izkFkhZ viuk izFken`"V;k dsl@ekeyk lkfcr djus esa foQy jgk gSA vxj izkFkhZ dks pkgh xbZ bLnqvk ,DlIyhflV rkSj ij iznku dh xbZ] rks okn nk;j djus dh frfFk ls fookfnr Hkwfe ij ifjorZu gks tk;sxk vkSj fcuk okn@tokc nkok esa la'kks/ku ds mDr ifjorZu dh vkKk nsus ls ceqdkfcy izkFkhZ vizkFkhZ dks gh vf/kd vlqfo/kk o viwj.kh; {kfr dkfjr gksxh] uk fd izkFkhZ dksA bl izdkj ls ;g nksuksa gh fopkj.kh; fcUnq fo:) izkFkhZ] cgd vizkFkhZ fu.khZr fd, tkrs gSA mijksDr rhuksa fopkj.kh; fcUnqvksa ds foospu] fo'ys"k.k o fu"d"kZ ds vk/kkj ij fuEu vkns'k ikfjr fd;k tkrk gS %& vkns'k fcuk eq[; nkok ds xq.k o voxq.k ij tkrs gq, izkFkhZ (izfroknh la[;k 3) }kjk nk;j ;g izkFkZuk&i= vLFkkbZ fu"ks/kkKk fo:) vizkFkhZ (oknh) vLohdkj dj [kkfjt fd;k tkrk gSA [kpkZ i{kdkjku viuk viuk ogu djsaxsA lgh (lat; dqekj) vij ftyk ,oa ls'ku U;k;k/kh'k la[;k&2 tks/kiqj egkuxj^^ 5. Mr. Narendra Thanvi and Mr. Muktesh Maheshwari, both the learned counsels appearing for the petitioner, Chhanwar Singh S/o Mangala Ram @ Mangal Singh, submitted that the interim order dated 26.09.2012 was granted after hearing both the side counsels, and therefore, the status quo of the entire land should be maintained and inter alia for the specific Khasra numbers as given in the order dated 26.09.2012, quoted above. 6. This argument is opposed by the learned counsel appearing for the respondents, Dr. Sachin Acharya and Mr. N.R. Choudhary, for defendants, Roop Singh @ Roopa Ram and Chailji, both sons of Sh. Kripa Ram, and Mr. S.M. Parihar, for Gyan Singh S/o Sh. Mangala Ram @ Mangal Singh (plaintiff). They submitted that the later order passed by the learned trial court on 31.10.2012 was unnecessarily influenced by the interim order dated 26.09.2012 passed a coordinate bench of this Court in connected CMA No.1992/2012 filed by appellant/plaintiff, Chhanwar Singh S/o Sh. Kripa Ram, and Mr. S.M. Parihar, for Gyan Singh S/o Sh. Mangala Ram @ Mangal Singh (plaintiff). They submitted that the later order passed by the learned trial court on 31.10.2012 was unnecessarily influenced by the interim order dated 26.09.2012 passed a coordinate bench of this Court in connected CMA No.1992/2012 filed by appellant/plaintiff, Chhanwar Singh S/o Sh. Mangala Ram @ Mangal Singh, in a suit filed by the plaintiff for cancellation of Will executed by plaintiff's father Sh. Mangala Ram @ Mangal Singh in favour of Gyan Singh (respondent No.1 herein), who is the real brother of plaintiff, Chhanwar Singh, but the plaintiff, Chhanwar Singh, cannot claim any right with respect to shares of brothers of Mangala Ram, i.e. Chhelji and Roop Singh, which partition took place way back in the year 1963 and, therefore, the interim order granted by a coordinate bench of this Court on 26.09.2012, though specifying the Khasra numbers in the same which were in the share of Mangala Ram only but under the guise of that interim order only, the learned trial court refused to grant temporary injunction in favour of applicant, Roop Singh @ Roopa Ram by order dated 31.10.2012 when the plaintiff, Roop Singh was sought to be stopped by creating obstruction in the construction of boundary wall by the plaintiff on the basis of said interim order dated 26.09.2012. 7. Having heard the learned counsels for the parties, this Court is of the opinion that both the appeals can be disposed of at this stage by directing the learned trial court that the interim order granted by a coordinate bench of this Court dated 26.09.2012, which duly specified the Khasra numbers, cannot beyond the parameters of that order and no further injunction could have been granted or believed to have been granted by the learned trial court in respect of other lands for which a partition took place way back in the year 1963 and the defendant, Roop Singh @ Roopa Ram S/o Kripa Ram, and Chailji S/o Kripa Ram, took their portion of their respective land holdings. Since the interim order dated 26.09.2012 was granted after hearing both the counsels, therefore, that order can be allowed to continue till the trial is completed in the suit filed by the Chhanwar Singh S/o Sh. Since the interim order dated 26.09.2012 was granted after hearing both the counsels, therefore, that order can be allowed to continue till the trial is completed in the suit filed by the Chhanwar Singh S/o Sh. Mangala Ram @ Mangal Singh, against his own brother, namely, Gyan Singh, but that order cannot adversely affect the land holdings of other defendants, namely, Roop Singh @ Roopa Ram and Chhelji, both sons of Sh. Kripa Ram @ Kripu. 8. Therefore, both the appeals are, accordingly, disposed of and it is further made clear that any construction raised on the land in question by any of the parties or any alienation of their land holdings, if any made by the any party, shall remain subject to the final decision of the suit filed by the plaintiff. 9. With these observations, both the misc. appeals are disposed of. No costs. A copy of this order be sent to the concerned parties and the court below forthwith. Appeal disposed of.