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2016 DIGILAW 1293 (RAJ)

Jawana Ram s/o Shri Pema Ram v. Rajendra Kumar s/o Shri Jawana Ram

2016-09-05

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This appeal is directed against the order dated 1/8/2013 passed by the District Judge, Merta District Nagaur, whereby, the trial court has accepted the application filed by the respondent-plaintiff for temporary injunction and has directed that the properties 'HINDI' indicated in para 6 of the application and properties 'HINDI' & 'HINDI' indicated in para 7 of the application be not transferred directly or indirectly and status quo be maintained and that both the parties during the pendency of the suit would not make any major change regarding the ownership and would not interfere in the use of the properties. 2. The respondent-plaintiff filed a suit for partition, declaration of adoption and permanent injunction against the appellant and two other defendants, along with the suit an application under Order 39, Rule 1 & 2 CPC was filed seeking injunction against the appellant. It was inter alia claimed that the properties indicated in the application were joint properties and that the defendants had no right to deal with the properties and that the applicant was entitled to injunction during the pendency of the suit for partition. 3. The application was opposed by the appellant inter alia on the submissions that the applicant has no right in the properties as the same were self acquired. Further submissions were made specifically qua properties indicated in para 6 and 7. 4. The trial court after hearing the parties, though opined that unless the applicant proves that the properties were joint properties, he had no right to seek injunction, however, without discussing anything further pertaining to the three properties, regarding which injunction has been granted by the trial court, found prima facie case in favour of the applicant and consequently balance of convenience and irreparable injury were also found in favour of the applicant. Based on its findings on the three aspects, injunction as noticed hereinbefore was granted. 5. It is submitted by learned counsel for the appellant with respect to the documents which have been filed during the pendency of the appeal that the trial court committed an error in granting injunction without even prima facie coming to the conclusion that the properties involved were joint properties. 5. It is submitted by learned counsel for the appellant with respect to the documents which have been filed during the pendency of the appeal that the trial court committed an error in granting injunction without even prima facie coming to the conclusion that the properties involved were joint properties. It was submitted that a bare perusal of the documents indicate that the properties were individual/self acquired by the appellant and, therefore, no injunction could have been granted at the instance of the applicant and, therefore, the order impugned deserves to be quashed and set aside. 6. Learned counsel for the respondent duly supported the order impugned and submitted that the order impugned does not call for any interference as in a suit for partition, passing of an order of injunction is the rule and rejection is an exception and, therefore, the appeal deserves to be dismissed. 7. I have considered the submissions made by counsel for the parties and have perused the material available on record. 8. A perusal of the order passed by the trial court indicates that the trial court after narrating the requirements of prima facie case in a suit for partition has jumped to the conclusion that there was prima facie case regarding three properties for which injunction was ultimately granted without discussing as to how, prima facie, the suit properties were joint and, therefore, on this count alone the order passed by the trial court cannot be sustained. 9. Learned counsel for the appellant though tried to make submissions based on the documents filed in the present appeal, the said documents have to be presented before the trial court and trial court has to take a view on the said documents. 10. In view thereof, the order impugned passed by the trial court, for lack of reasons in support of its conclusions, cannot be sustained and, therefore, deserves to be set aside. 11. Consequently, the appeal is allowed, the matter is remanded back to the trial court with a direction to rehear the application filed by the respondent-plaintiff under Order 39, Rule 1 & 2 CPC after giving an opportunity of hearing to the parties and decide the same as expeditiously as possible.