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2017 DIGILAW 1449 (RAJ)

VINOD KUMAR SHARMA v. NARENDRA KUMAR

2017-07-03

DINESH CHANDRA SOMANI

body2017
ORDER : Dinesh Chandra Somani, J. The instant Civil Misc. Appeal has been preferred by the defendant/appellants against the order dated 16/11/2016 passed by Additional District Judge No. 3, Sikar in Civil Misc. Case No. 93/2016 (CIS No. 123/2016), whereby application for temporary injunction filed by the plaintiff/respondent under Order 39, Rule 1 and 2 of CPC has been partly allowed and both parties have been restrained to maintain status quo of the suit properties till disposal of the suit. 2. The material facts which are necessary for disposal of this Civil Misc. Appeal stated in brief are as under :- 3. The plaintiff/respondent No. 1 (hereinafter referred to as "the plaintiff") brought a suit for partition and permanent injunction under section 22 and 38 of the Specific Relief Act, against the defendant/appellants (hereinafter referred as the "the defendants") and the respondent No. 2 to 5, stating therein that the plaintiff and the defendant No. 1 to 4 are legal representatives of late Mangilal. Mangilal had two properties situated in Sikar. One property is situated in Ward No. 26 new, Opposite Rajendra Hospital, Rani Sati Road, Sikar and another property situated in Ward No. 20, Opposite Kalyanji Temple, Sikar. After death of Mangilal, all the parties became owner of ?, ? share in these properties. The defendant mother-Sita Devi and sister-Lalita Devi executed a registered release deed in favour of the plaintiff on 03/05/2011 and both of them surrendered their rights and share in favour of the plaintiff, hence the plaintiff became owner of ? share and the appellants remained with ?, ? share in these properties. Along with the civil suit, the plaintiff filed an application under Order 39, Rule 1 and 2 read with section 151 of CPC for restraining the defendants from interfering in his possession and to change condition of the disputed properties, and not to sale, mortgage or alienate the property to anyone. The defendant/appellants filed their separate replies of the application for temporary injunction and denied the material averments of the plaint, and stated that their father Mangilal himself executed a family settlement in the year 1997 i.e. on 31.07.1997 and divided the property among all the three brothers, and all of them signed the document of family settlement. The defendant/appellants filed their separate replies of the application for temporary injunction and denied the material averments of the plaint, and stated that their father Mangilal himself executed a family settlement in the year 1997 i.e. on 31.07.1997 and divided the property among all the three brothers, and all of them signed the document of family settlement. Defendants also pleaded that on 02/08/2010, an amended family settlement was executed by all the three brothers with mutual consent, in presence of their mother Sita Devi and maternal uncle Dindayal, and the property was divided in two parts and 5 feet wide place was left in the mid, for use as common way. Eastern portion came in the share of the plaintiff and western portion came in the share of the defendant/appellants No. 1 & 2. The plaintiff is having 50% share and the defendant/appellants No. 1 & 2 are having 50% share in this property. As the property No. 1 is costly and the plaintiff got 50% portion in the property mentioned in para 3 (Ka), therefore, the plaintiff released his share in the property mentioned in para 3 (Kha) in favour of the defendant/appellants No. 1 & 2. It is also pleaded that after execution of amended family settlement, all the parties started using their share and constructed shop and started their business. It is further pleaded that if subsequently, release deed is executed in favour of the plaintiff, then also it will not affect the rights of the parties, and it should be read in favour of the defendant/appellants also. It is also pleaded that the defendant No. 2 Pramod Kumar started construction on the first floor of his share and the construction was on full swing. Later on, ill intention developed in the mind of the plaintiff, and in order to grab the share of his two brothers, the plaintiff has filed this suit for partition and injunction along with application for temporary injunction, and the defendants prayed to dismiss the application for temporary injunction filed by the plaintiff. 4. After hearing learned counsel for the parties, the learned trial Court partly allowed the application for temporary injunction and restrained both the parties to maintain status quo of the disputed properties, till disposal of the suit. 5. Being aggrieved by the impugned order passed by the learned trial Court, the defendant/appellants have preferred this appeal. 6. 4. After hearing learned counsel for the parties, the learned trial Court partly allowed the application for temporary injunction and restrained both the parties to maintain status quo of the disputed properties, till disposal of the suit. 5. Being aggrieved by the impugned order passed by the learned trial Court, the defendant/appellants have preferred this appeal. 6. Learned counsel for the appellants contended that the plaintiff has concealed the material fact of family settlement took place among the parties. The plaintiff did not deny execution of the family settlement dated 31/07/1997 and amended settlement dated 02/08/2010, thus, he did not dispute the genuineness of these documents and the signatures of the parties thereon. The plaintiff and the mother Smt. Sita Devi (respondent No. 2) were well aware of these documents executed in the year 1997 and 2010. 7. Learned counsel for the appellants also contended that the defendant/appellant No. 2 was raising construction on the house and shop of his share and construction was on full swing. The defendant/appellant No. 2 furnished an undertaking before the learned trial Court that he be allowed to complete the construction work, and he would remove the same at his own cost, if the suit is decided against him, and he would not claim any right or equity, but the learned trial Court did not consider the undertaking furnished by the appellant and erroneously restrained him to maintain status quo of the property, till disposal of the suit. 8. Learned counsel for the appellants further contended that a coparcener may renounce his interest in the coparcenary property in favour of other coparcener's as a body, but not in favour of one or more of them. If he renounces in favour of one or more of them, the renunciation enures for the benefit of all other coparcener's and not for the sole benefit of the coparcener in whose favour, the renunciation is made, and prayed to allow the appeal, rejecting the application for temporary injunction in toto, and in alternative prayed to allow the appellant to complete the construction work at their own cost, subject to furnishing undertaking that the appellant would remove the same, if the suit is decided against them. In support of his contentions, learned counsel for the appellants placed reliance on :- 1. Order passed by Coordinate Bench on 11/12/2013 in SB CMA No. 3645/2011 Mushtkeem & Ors. In support of his contentions, learned counsel for the appellants placed reliance on :- 1. Order passed by Coordinate Bench on 11/12/2013 in SB CMA No. 3645/2011 Mushtkeem & Ors. v. Arun Kumar Jhunjhunwala (deceased) & Ors. 2. AIR 2003 AP 498 M. Krishna Rao & Anr. v. M. L. Narasikha Rao & Ors. 3. AIR 1987 SC 1775 Thamma Venkata Subbamma (dead) By.... v. Thamma Rattamma & Ors. 9. Per contra, learned counsel for the respondents opposed the contentions of learned counsel for the appellants and supported the impugned order passed by the learned trial Court, contending that Mangilal died in the year 2008, therefore, the properties left by him, have to be partitioned under section 8 of the Hindu Succession Act 1956, and not under Section 6 of the Act. Learned counsel also contended that defendant mother Sita Devi and sister Lalita Devi executed registered release deed in favour of the plaintiff on 03/05/2011 and surrendered their rights and share in favour of the plaintiff, therefore, the plaintiff became owner of ? share in the properties left by Mangilal. Thus, the learned trial Court rightly restrained the defendant/appellants to maintain status quo of the suit properties till disposal of the suit, and prayed to dismiss the appeal being devoid of any substance. In support of his contentions, learned counsel for the respondents placed reliance on :- 1. 2003 (2) WLN 332 Ramanlal v. Smt. Heeramani & Ors. 2. AIR 1979 Madras Page 1 The Additional Commissioner of Income Tax, Madras-I v. P.L. Karuppan Chettiar 3. (1992) 109 CTR (SC) 317 Commissioner of Income Tax v. P.L. Karuppan Chettiar 4. AIR 2016 Rajasthan 198 Bhanwari Devi v. Arvind Kumar & Ors. 5. AIR 2005 SC 104 Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass 6. RLW 1988 (2) 262 Peer Gulam Naseer v. Peer Gulam Jelanee (67) 10. I have considered the rival contentions of learned counsel for the parties and perused the material made available on record as well as relevant legal provisions and the case law cited by learned counsel for the parties. Following substantial questions of law and facts are involved in this case :- (a) Whether partition of the property in dispute, already took place, and Mangilal himself executed a family settlement in the year 1997? (b) Whether an amended family settlement was executed by the plaintiff and defendant/appellants on 02/08/2010? Following substantial questions of law and facts are involved in this case :- (a) Whether partition of the property in dispute, already took place, and Mangilal himself executed a family settlement in the year 1997? (b) Whether an amended family settlement was executed by the plaintiff and defendant/appellants on 02/08/2010? If so, what is the effect thereof? (c) Whether share of the plaintiff has increased accordingly, after execution of the release deed by the defendant No. 3 & 4 in favour of the plaintiff, or whether the renunciation endures for the benefit of all the three brothers and not for the sole benefit of the plaintiff, in whose favour the renunciation was made? which can be decided only after recording evidence of both the parties to the suit. 11. To us, if at this stage, the appellants are permitted to raise any construction on the property in dispute and are allowed to change the nature of the property and ultimately after the suit filed by the plaintiff is decreed, then in such circumstances the relief sought by the plaintiff would become virtually in fructuous. Furthermore, if the status quo of the suit property is maintained till final adjudication of the suit, no such irreparable loss would cause to the appellants. It is well settled position of law that courts should not decide the controversy finally, while deciding the temporary injunction application. 12. In Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass (supra), the appellant filed a civil suit for possession with an application for temporary injunction restraining the respondent from alienating the suit property and putting up any construction thereon. Learned trial Court granted an order of temporary injunction, as prayed for. The appeal filed by the respondent before the learned District Judge, was allowed holding that the alienation made, if any, will be subject to the law of lis pendens and construction, if any, put by the respondent will have to be removed at his own risk and cost in the event of the suit being decreed. Revision filed against the said order, came to be dismissed by the High Court vide impugned order, which was assailed before Hon'ble Apex Court. Hon'ble Apex Court in Para 10 of it's judgment observed as under:- 10. Be that as it may, Mr. Revision filed against the said order, came to be dismissed by the High Court vide impugned order, which was assailed before Hon'ble Apex Court. Hon'ble Apex Court in Para 10 of it's judgment observed as under:- 10. Be that as it may, Mr. Sachhar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of the case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored. 13. Due to change in facts and circumstances of the case, the judgments cited by learned counsel for appellants, are not of much help to the appellants, at this stage. 14. In view of above, the impugned order passed by the learned trial Court is in consonance with the settled legal principles, and it does not call for our interference, at this stage. We find no merit in the appeal. 15. Consequently, the appeal is dismissed with no order as to costs.