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2016 DIGILAW 1822 (ALL)

Radhey Lal Mahipal Sharan v. Pramod Kumar

2016-05-11

ABHAI KUMAR, ARUN TANDON

body2016
JUDGMENT This first appeal from order under Order 43 Rule (1) of the Civil Procedure Code has been filed by the plaintiff-appellant M/s. Radhey Lal Mahipal Sharan, a partnership firm as well as by Vijay Kumar against the judgment and order of the Civil Judge (Senior Division), Fast Track Court, Bijnor dated 12.4.2016 passed in Original Suit No. 34 of 2015, M/S Radhey Lal Mahipal Sharan And Another Vs. Pramod Kumar and others. 2. Under the order impugned, the Trial Court has rejected the temporary injunction application made by the plaintiff-appellants being paper no.6-C and 40-C. Hence this appeal. 3. The plaintiff-appellants before us had filed Original Suit No. 34 of 2015 for declaring the sale deeds dated 24.12.2013 and 26.12.2014 executed by defendant no.1 namely, Pramod Kumar who was non other than the real brother of the plaintiff no.2 as null and void. The plaintiffs also prayed for a permanent prohibitory injunction restraining the defendant no.1 from demolishing the boundary wall from taking unauthorized possession of the property and for not interfering either himself or through his employees in the use and occupation of the same. The disputed property being Khata No. 149 Minzumla total area 5270 hectares. The boundaries whereof are described in the plaint. From the plaint allegation, it is apparently claimed that the disputed property is recorded as plot no. 149 Minzumla the plaintiff no.1 is a registered partnership firm, while plaintiff no.2 and defendant no. 1 are real brothers. 4. It was the case of the plaintiff that the firm was engaged in the business of khandsari and from the earning of the firm the said plot no. 149 Minzumla had been purchased. It is stated that earlier defendant no.1 was also a partner in the firm but he has withdrawn from the partnership firm on 18.10.1980. Thereafter, he has no concern with the movable or immovable properties of the firm. Although in the revenue records the property in dispute continued to be recorded in the joint name of the plaintiff no.2 and defendant no.1 i.e. the two brothers but in fact the owner of the property was the firm. It was stated that for protecting the property, boundasry wall along with the door had been established in the year 1981 and a small room for Chaukidar had also been constructed with a wash room. It was stated that for protecting the property, boundasry wall along with the door had been established in the year 1981 and a small room for Chaukidar had also been constructed with a wash room. In the north-western portion with the consent of the firm, the plaintiff no.2 had constructed a marriage hall and a part of the property was being used as the parking space for the marriage hall. 5. It was the case of the plaintiff that defendant no.1 has illegally sold half share in the said plot vide sale deeds executed on 24.12.2014 and 26.12.2014 in favour of defendants no. 2 to 8. Sale deeds so executed are wholly without authority. 6. It is explained that in the year 2011-12 on an application made by the firm, the land user of the property of the plot was changed to non agriculture. The sale deed executed in respect of the property is in the joint name of the plaintiff no.2 and defendant no. 1 but in fact it was purchased in the name of the partners of the firm inasmuch as the entire money towards consideration was transferred from the account of the firm. The firm had been depositing the land revenue in respect of the said plots since 1980. Lastly it is submitted that the defendants were never in the possession of the property in question. 7. The plaint allegations were disputed by the defendant by means of an objection. It was stated that the property was purchased by the two brothers from one Mr. Rameshwar Prasad under registered sale deed dated 10.9.1980 and that in the sale deed there is absolutely no mention of the consideration having been paid by the firm. In the revenue entries since 1980, the plot continues to be recorded in the joint name of the plaintiff no.2 and the defendant no.1. Since the defendant was the recorded tenure holder of the property covered by the U.P.Z.A. & L.R.Act, suit for injunction was barred by Section 331 of the U.P. Zamindari Abolition Act, 1951. 8. The defendant no.1 has sold his share i.e. half share in the property in favour of defendants no.2 to 8. Defendants no. 2 to 8 have taken possession and have constructed a boundary wall. No case for grant of temporary injunction was made out. 9. 8. The defendant no.1 has sold his share i.e. half share in the property in favour of defendants no.2 to 8. Defendants no. 2 to 8 have taken possession and have constructed a boundary wall. No case for grant of temporary injunction was made out. 9. Defendants no.2 to 8 also contested the proceedings and it was their case that the property was not owned by the partnership firm. The defendant no.1 has sold his share strictly in accordance with law and no case for grant of temporary injunction was made out. It was specifically stated that defendants no.2 to 8 were in actual possession over the property which has been sold in their favour. It was also brought to the notice of the Trial Court that defendant no. 2 had filed an application before the prescribed authority. Regulated Area on 29.12.2012 and in the application so made, it was stated on oath by way notarial affidavit dated 12.1.2013 that plaintiff no.2 had only half share i.e. 2635 hectare, in plot no. 149 Minzumla out of the total area of plot i.e. 5270 square meter. 10. Thereafter he filed an affidavit on 8.2.2013 stating therein that the plot no. 149 Minzumla was the property of the firm and that no constructions are proposed over the land covered by plot no. 149 Minzumla the land is to be used for parking only. Plaintiff no. 2, therefore, prayed for necessary corrections in paragraph 2 of the earlier affidavit dated 12.1.2013. 11. The Trial Court after considering the pleadings and the material brought on record in respect of the temporary injunction application has returned a categorical finding that in the revenue entries in respect of plot no. 149 Minzumla, Plaintiff no.2 and defendant no.1 are shown as the co-sharers, the entries are more than the 3 decades old. 12. The Trial Court has further recorded that the plaintiff no.2 led no prima facie evidence to establish that the source of findings for purchase of the said plot no. 149 Minzumla is notarial affidavit dated 12.1.2013, it practically an admission that he had half share in plot no. 149 Minzumla i.e. an area of 2635 square meter. area and it was his case that the property belongs to the firm. 13. 149 Minzumla is notarial affidavit dated 12.1.2013, it practically an admission that he had half share in plot no. 149 Minzumla i.e. an area of 2635 square meter. area and it was his case that the property belongs to the firm. 13. The Trial Court has recorded that even if the version of plaintiffs is accepted that the property is of the firm then it belongs to every partner. 14. The Trial Court has come to the conclusion that the plaintiff has not been able to make out a prima facie case for grant of interim injunction. 15. We having gone through the material on record see no reason to take any other view in the matter of grant of temporary injunction. However, in order to protect the interest of the parties during the pendency of the suit proceedings, we clarify that any observation made in the matter at this stage and shall not affect the final decision to be taken by the Trial Court. We do direct that the parties would be required to file an undertaking before the Trial Court to the effect that any constructions raised by any of the parties or change in the nature of property during the pendency of the suit shall be removed within a period of two months as per the judgment and decree passed the suit. 16. With the aforesaid directions, this appeal is disposed of.