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2017 DIGILAW 1482 (RAJ)

PARAKRAM SINGH v. SALIM KHAN

2017-07-05

ARUN BHANSALI

body2017
JUDGMENT : Arun Bhansali, J. This appeal is directed against the order dated 21.01.2016, passed by the Additional District Judge No.1, Bhilwara, whereby the application filed by respondent-Salim Khan under Order 39 Rules 1 & 2 CPC has been accepted and injunction has been granted against the respondents regarding not interfering with possession of the plaintiff-Salim Khan and to maintain status quo. 2. A suit for partition and permanent injunction was filed by Salim Khan inter alia with the averments that land situated at Village Banera, District Bhilwara was joint land of plaintiff and the defendants, admeasuring 2 Bighas and 19 Biswa. It was claimed that out of the said land, the plaintiff has purchased ?rd land from its Kahtedars by various registered sale deeds. It was also alleged that on account of the fact that the land is not partitioned between the parties, the same was leading to every day disputes between the parties and, therefore, the prayer was made that the land in dispute be partitioned by metes and bounds. Along with the suit, an application was filed seeking injunction against the defendants from interfering in the possession of the plaintiff and to maintain status quo regarding the land in question. 3. The notice of the suit as well as the Temporary Injunction application, was issued to the defendants. Reply to the Temporary Injunction application was filed by defendant Nos. 13 & 14 i.e. the appellants in the present appeal, inter alia, questioning the right of plaintiff to seek partition of the suit property. Various objections were raised regarding the maintainability of the suit on account of land in question being agricultural land and two revenue suits bearing No.79 of 2009 and 16 of 2015, being pending before the Revenue Courts, in which, in suit No.16/2015, the plaintiff-Salim Khan was a party. 4. Further submission were made that the plaintiff himself filed a suit for partition before the Revenue Court and got the same withdrawn without seeking any liberty to file fresh and has now again filed a suit, which is not maintainable. Submissions were made that the parties were in possession of the land, which was transferred to them by their predecessors and there was no question of seeking any partition of the property in question and the suit filed was wholly frivolous. 5. Submissions were made that the parties were in possession of the land, which was transferred to them by their predecessors and there was no question of seeking any partition of the property in question and the suit filed was wholly frivolous. 5. After hearing the parties, the Trial Court, by impugned order, came to the conclusion that the plaintiff had prima facie case in his favour and that balance of convenience was in his favour and if the injunction prayed for was not granted, he was likely to suffer irreparable injury and consequently granted injunction, as noticed hereinbefore. 6. It is submitted by the learned Counsel for the appellants that the Trial Court fell in error in granting the injunction as prayed for by the plaintiff. It is vehemently submitted that though various objections raised by the appellants have been noticed in the order impugned, however, while deciding the aspect pertaining to prima facie case, none of the said aspects were dealt with and no finding regarding the merit of the objections raised, was recorded and the order has been passed in a cursory manner without recording any reasons. It is also submitted that the objections raised by the appellants regarding maintainability of the suit and prima facie case in favour of the plaintiff were substantial in nature and if upheld, the same would result in dismissal of the suit/temporary injunction application, however, the trial court has failed to deal with any of the objections. Submissions were made to support the objections. 7. Further submissions were made that application filed by the appellants under Order 7, Rule 11 CPC questioning the jurisdiction of Civil Court, is still pending before the Trial Court. It was prayed that the order impugned deserves to be quashed and set aside. 8. Learned counsel appearing for the respondents-plaintiff vehemently opposed the submissions. It was submitted that the respondent-Salim Khan is a recorded tenant of the land in question and is entitled to protect his possession as well as, seek injunction against those who were seeking to interfere with his possession and/or dealt with any part of the said property and as the plaintiff had filed the suit for partition, the Trial Court was justified in granting injunction in his favour and, therefore, the order impugned passed by the Trial Court does not call for any interference. Further submissions were made that the objections raised by the appellants in reply to the Temporary Injunction application had no substance, inasmuch as, the pendency of the revenue suits does not debar the plaintiff in the present case from maintaining his plea and get the relief from the Civil Court and, therefore, the appeal filed by the appellants deserves to be dismissed. 9. I have considered the submissions made by the learned counsel for the parties and have perused the material available on record. 10. In the Temporary Injunction application filed by the plaintiff, the appellants had filed a detailed reply and has raised several objections pertaining to the maintainability of the suit and the merits of the plea, raised by the plaintiff. The Trial Court while deciding the application by the the impugned order, noticed the said plea in Para No.6 of the impugned order, however, while dealing with the issue of prima facie case, it simply reiterated the contentions raised by the plaintiff and without even dealing with any of the plea raised by the appellants regarding prima facie case/on merits of the Temporary Injunction application, merely based on the facts that the plaintiff was a recorded tenant of ?rd portion of the land in question, came to the conclusion that there was a prima facie case in his favour. 11. There is substance in the submissions made by the learned counsel for the appellants that the Trial Court, while deciding the issue of prima face case, was required to notice and prima facie determine the merits of the contentions raised by the appellants and by simply not mentioning and/or dealing with said aspects of the matter, which were raised in the reply to the Temporary Injunction, in view thereof, the finding of prima face case recorded by the Trial Court cannot be sustained. Merely because the land in question has been recorded in favour of the plaintiff by itself cannot be a reason enough to find prima facie case in favour of the plaintiff and the Trial Court was bound to deal with the objections raised by the appellants regarding the maintainability of the suit and application/merit of the contentions raised in the suit. 12. 12. In view thereof, without going into the merits of the respective contentions raised by the counsel for the parties regarding the merits/demerits of the Temporary Injunction application and contentions raised therein, it would be in the interest of justice that the matter is remanded back to the Trial Court to hear and decide the Temporary Injunction application afresh after providing adequate opportunity of hearing to the parties. 13. In view of the above discussions, the appeal filed by the appellants is allowed. The order dated 21.01.2016, passed by the Trial Court, is set aside and the matter is remanded back to the Trial Court to hear and decide the same afresh, preferably within a period of six weeks from the date a certified copy of this order is placed before the said Court. 14. Till such time that the application is decided, the parties shall maintain status quo as ordered by the Trial Court by the impugned order. However, it is made clear that the direction to maintain status quo, till the application is again decided by the Trial Court, shall not be taken as expression of any opinion on the merits of the case. 15. It is further directed that the Trial Court would hear and decide the pending application filed by the appellants under Order 7, Rule 11 CPC most expeditiously.