Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1535 (RAJ)

Shravan Kumar v. Dinesh

2017-07-11

DINESH CHANDRA SOMANI

body2017
JUDGMENT : Dinesh Chandra Somani, J. 1. Heard learned counsel for the petitioner and learned counsel for the respondent. 2. The instant petition under Article 227 of the Constitution of India has been filed by the plaintiff/petitioner assailing the order dated 25.03.2017 passed by Additional District Judge, Rajgarh, (Alwar) in Civil Miscellaneous Appeal No. 12/2016 titled as Dinesh vs. Shravan Kumar, whereby the learned appellate Court allowed the appeal and set aside the order dated 24.08.2016 passed by Civil Judge, Rajgarh District Alwar in Civil Miscellaneous Case No. 59/2016, Shravan vs. Ram Dayal and Others. 3. Skeletal material facts necessary for disposal of this petition are that plaintiff/petitioner filed a civil suit against the present respondent and others in the Court of Civil Judge, Rajgarh (Alwar) for mandatory and permanent injunction, alongwith an application for temporary injunction under Order 39, Rule 12 of CPC with averment that the parties belong to same family and their common ancestral property is situated in village Talab, which was inherited from predecessor Late Narayan Lal. This property is disputed between the parties. The defendant/respondent is raising construction on the un-partitioned property without ascertaining share with intent to grab the property and prayed to restrain the defendant/respondent by granting temporary injunction. 4. The suit and temporary injunction application were contested by the defendant/ respondent, who filed his reply contending that he is constructing on the property of his share. He has obtained the property from his father Ramdayal. Division of the property in dispute has taken place about 70 years ago in the life time of Narayan Lal and since then, all the persons are in possession of their respective share. He has commenced construction on 11.05.2016 and stands completed on 10.07.2016 and prayed to dismiss the temporary injunction application. 5. After hearing the parties, learned trial Court allowed temporary injunction application and restrained both the parties to maintain status quo of the suit property till disposal of the suit. Being aggrieved with the said order, the defendant/respondent preferred appeal, which came to be decided by Additional District Judge, Rajgarh, Alwar vide impugned order dated 25.03.2017, who allowed the appeal and set aside the order dated 24.08.2016 passed by the learned trial Court. Feeling dissatisfied with the impugned order dated 25.03.2017 passed by Additional District Judge, Rajgarh, the plaintiff/petitioner has approached this Court by way of this petition. 6. Feeling dissatisfied with the impugned order dated 25.03.2017 passed by Additional District Judge, Rajgarh, the plaintiff/petitioner has approached this Court by way of this petition. 6. Submissions of learned counsel for the parties and perusal of material available on record, reveal that it is admitted fact that the suit property belonged to late Narayan Lal, who is father of the petitioner and grand father of the respondent, and Narayan Lal had four sons. Case of the plaintiff/petitioner is that the suit property is common and all the successors of Narayan Lal are in use and occupation of the property. Whereas, case of the defendant/respondent is that the partition of the property has taken place 70 years ago in the life time of late Shri Narayan Lal and since then, the parties are in possession on their respective share in the property. The defendant/respondent did not produce any document of partition. As such, there is no documentary evidence to say that partition of the said property has taken place long back. 7. From perusal of impugned order passed by the appellate Court, it reveals that during arguments, defendant/respondent filed a copy of patta issued by Gram Panchayat, Talab in favour of the plaintiff/petitioner on 20.07.2004 and stated that after the partition, the plaintiff/petitioner has got patta of the property in his name, which came into his share in the partition, therefore, the property in dispute cannot be said to be common property. 8. Learned counsel for the plaintiff/petitioner contended that the patta produced by the defendant is not relating to the part of the disputed property but it belongs to other property of the petitioner, which is situated on east side of the disputed property. 9. After hearing learned counsel for the parties, learned appellate Court allowed the appeal on the pretext that partition of the property in dispute has taken place long back, therefore, prima-facie the plaintiff/petitioner has no right in the property. 10. It is settled legal position that the High Court can interfere in exercise of its power of superintendence, when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a manifest failure of justice or the basic principles of natural justice have been flouted. 11. 10. It is settled legal position that the High Court can interfere in exercise of its power of superintendence, when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a manifest failure of justice or the basic principles of natural justice have been flouted. 11. As discussed above, no documentary evidence is there on record to show that partition of the property has taken place. Whether the disputed property belonging to Late Narayan Lal, has been partitioned or not, can be decided by the learned trial Court only after recording evidence of both the parties. Therefore, it is necessary that the status quo of the property in dispute should be maintained till disposal of the suit. If the impugned order passed by the appellate Court is allowed to continue, it will be a manifest failure of justice and there may be multiplicity of proceedings. 12. Having regard to the submissions made on behalf of the respective parties and the material made available on record as well as the reasons recorded by the learned appellate Court in support of the impugned order and on consideration of the relevant legal provisions and the well settled legal position, I find it a fit case in which this court must invoke its extraordinary jurisdiction conferred upon it under Article 227 of the Constitution of India to quash and set aside the impugned order. 13. In view of above, the petition is allowed and the impugned order dated 25.03.2017 passed by learned Additional District Judge, Rajgarh is quashed and set aside and the order dated 24.08.2016 passed by Civil Judge, Rajgarh in Civil Miscellaneous Case No. 59/2016, is restored. No costs.