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2017 DIGILAW 1782 (RAJ)

Kamla Shankar v. Prem Devi

2017-08-09

DINESH MEHTA

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JUDGMENT : Dinesh Mehta, J. 1. The matter comes up for orders upon application (IA No.3667/2017) under Article 226 (3) of the Constitution of India filed on behalf of the respondents for vacation of the interim order dated 13.4.2017. However, with the consent of the parties, the writ petition itself is heard and decided at this stage. 2. The present writ petition is directed against the order dated 16.5.2015 passed by learned Additional District Judge No.3, Udaipur in an appeal filed against the order dated 09.04.2015 passed by learned Civil Judge (North) Udaipur City, Udaipur whereby the application for grant of temporary injunction under Order 39, Rule 1 & 2 of the Code of Civil Procedure had been rejected. 3. Brief facts relevant for the purpose of deciding the present writ petition are that the plaintiffs-petitioners have filed a suit for cancellation of the registered sale-deed dated 27.4.1981 and mandatory injunction. Along with the suit, the plaintiffs had also filed an application under Order 39, Rule 1 & 2 of the Code of Civil Procedure, seeking injunction to the effect that the respondents be restrained from alienating the suit property till the disposal of the suit. Learned trial Court has rejected the petitioners' application for grant of temporary injunction vide its order dated 09.04.2015. The Trial Court has recorded a finding that neither the prima facie case nor other ingredients for grant of temporary injunction are in favour of the plaintiffs. 4. The said order passed by the trial Court has been affirmed by the learned Additional District Judge No.3, Udaipur (hereinafter referred to as "the appellate Court") vide its order dated 16.05.2015 and prayer for grant of temporary injunction has been refused. 5. Mr. Kawadia, learned counsel for the petitioners submitted that in the writ petition bearing SB Civil Writ Petition No. 10160/2015 Smt. Bali & Anr. v. Late Shri Mahavir & Ors., between the same parties, arising from the revenue proceedings, Coordinate Bench of this Court has passed an interim order dated 24.2.2016 and directed the respondents to maintain status quo in relation to the title of the property. He further contended that keeping in view the nature of the present suit, when the sale deed has been sought to be quashed, the trial Court was required to at least safe-guard the interest of the contesting parties by restraining the defendants from alienating the subject property. He further contended that keeping in view the nature of the present suit, when the sale deed has been sought to be quashed, the trial Court was required to at least safe-guard the interest of the contesting parties by restraining the defendants from alienating the subject property. He submitted that transfer and alienation in any manner is otherwise also prohibited by virtue of Section 52 of the Transfer of Property Act, 1882 and as such the Courts below ought to have passed an injunction restraining the defendants from alienating the property. 6. Per contra, Mr. Rajesh Shah, learned counsel for the respondents strongly submitted that the petitioners have filed the present suit after 31 years of the sale-deed having been executed and hence they are not entitled for any relief, much less injunction as prayed for. He further contended that the plaintiffs father Kanhaiya Lal himself had sold the property in question to the defendants by way of registered sale-deed dated 27.4.1981, which bears signatures of his grand father-Salag Ram and brother-Daya Ram as witness. He further contended that the property in question is not only under the ownership of the defendants but also in their continuous possession. 7. He added that both the Courts below have concurrently held that the plaintiffs have no prima facie case in their favour and in view of such findings, this Court should not interfere in its extra ordinary jurisdiction under Article 227 of the Constitution of India, as held in catena of decisions of this Court as well as of Supreme Court. He further submitted that the defendants have raised construction on the contentious land and they are residing therein. 8. I have heard learned counsel for the parties and perused the material available on record. 9. A perusal of the finding recorded by the trial Court as well as appellate Court shows that both the Courts below were swayed by the fact that the plaintiffs have filed the present suit after about 34 years of the execution of the sale deed. Apart from this, the revenue record and mutation entries are undisputedly existing in plaintiffs' names, which evidence has been ignored by the Courts below by observing that the mutation entries are merely fiscal entries and they do not confer any title. 10. Apart from this, the revenue record and mutation entries are undisputedly existing in plaintiffs' names, which evidence has been ignored by the Courts below by observing that the mutation entries are merely fiscal entries and they do not confer any title. 10. It is noteworthy that part of the land in question in Khasra No.1765 is still lying in plaintiffs' names in revenue record, for which a litigation between the parties was already pending in the competent revenue Court, which too has come to this Court in the form of the aforesaid writ petition. 11. Any transfer or alienation of the disputed property during the pendency of the suit would not only create third party rights but the same would be hit by the provisions of Section 52 of the Transfer of Property Act, 1882. 12. In view of above, the interim order dated 13.4.2017 is hereby made absolute till final disposal of the suit by the trial Court. 13. However, in the peculiar facts of the present case, it is deemed expedient and hence ordered that the trial Court shall decide the suit expeditiously, preferably within a period of one year from today. Needless to reiterate that till disposal of the suit, the respondents-defendants shall not, in any manner, transfer or alienate the property in question. 14. The writ petition stands allowed in above terms. No order as to costs.