Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 2101 (RAJ)

Chandraveer Singh v. Saubhagya Singh

2017-09-20

ARUN BHANSALI

body2017
JUDGMENT : Arun Bhansali, J. This appeal under Order 43, Rule 1(r) CPC is directed against the order dated 24.08.2016 passed by the trial court, whereby the application filed by the respondents under Order 39, Rule 1 and 2 CPC has been allowed and injunction has been granted in favour of the respondents-plaintiffs. 2. The suit for partition, declaration and permanent injunction was filed by the respondents for properties indicated in para-4 of the plaint belonging to Late Rao Sawai Prithvi Singhji. It was, inter alia, claimed in the plaint that Late Rao Sawai Prithvi Singhji was Thikanedar of Bijoliya, who had four sons-Kesari Singh, Goverdhan Singh, Madan Singh and Vijay Singh. It was claimed that Rao Sawai Prithvi Singhji died in the year 1913 and by order dated 22.09.1959, the Jagir Commissioner, Rajasthan, Jaipur, declared the list of personal properties of Late Rao Sawai Prithvi Singhji, which properties belong to the Hindu Undivided Family. The plaintiffs made a reference to a suit filed by the defendant-Chandraveer Singh and his mother in the year 1983, which came to be decided in the year 2001 and it was submitted that the said suit was confined to Govind Vilas, Mukut Mahal and Panera situated in Garh Bijoliya and was based on agreement dated 14.04.1968. It was indicated that against the decree dated 01.11.2001 passed by the trial court, first appeal & second appeal were dismissed and the Special Leave Petition by the Supreme Court filed by the plaintiffs ultimately came to be decided against them on 24.07.2015. It was alleged that the defendant in the garb of execution of the decree, was seeking to take possession of the property beyond the decree and that rest of the properties had not been partitioned. It was alleged that the defendant in the garb of execution of the decree, was seeking to take possession of the property beyond the decree and that rest of the properties had not been partitioned. Based on the alleged exclusive possession, plea of adverse possession was also raised and ultimately it was prayed in the suit as under:- vr% okni= izLrqr dj fuosnu gS fd okn&oknhx.k fo:) izfroknh fuEu izdkj ls fMdzh Qjek;k tkos % 1 & oknhx.k dks xksfoan foykl] eqdqV egy o ikusjk uked iks'kZu ds vykok x<+ fctkSfy;k dk izfrdwy dCts ds vk/kkj ij ekfyd ?kksf"kr fd;k tkosA 2 & x<+ fctkSfy;k ds vykok okn i= dh en la[;k 4 esa of.kZr mDr lEifRr;ksa dk i{kdkjku esa ckbZ ehVl~ ,.M ckm.Ml~ caVokjk djok;k tkos i{kdkjku~ ds fgLls lqfuf'pr fd;s tkos rFkk i{kdkjku~ dks ,d nwljs ds fgLlksa ds mi;ksx miHkksx esa ck/kk mRiUu djus ls ikcan fd;k tkosA 3 & izfroknh dks tfj;s LFkkbZ fu'ks/kkKk ikcan Qjek;k tkos fd oks xksfoan foykl] eqdqV egy o ikusjk uked iks'kZu ds vykok x<+ fctkSfy;k ds fdlh Hkh Hkkx ij dCtk ugha djs u djkosa ,oa oknhx.k ds }kjk x<+ fctkSfy;k ds mi;ksx miHkksx esa etkger iSnk u djas u gh djkosa rFkk mDr lEifRr;ksa dks [kqnZ cqnZ ugha djsa rFkk izfroknh x<+ fctkSfy;k esa mlds gn ds dCts dh fLFkfr ;Fkkor~ cuk;s j[ksA 4 & izfroknh dks tfj;s LFkkbZ fu"ks/kkKk ikcUn Qjek;k tkos fd oks x<+ fctkSfy;k ds vykok 'ks"k oknxzLr laifRr;ka tks fd okn i= dh en la[;k 4 esa n'kkZ;h gSa esa oknhx.k ds fgLlsa ds mi;ksx miHkksx esa etkger ck/kk mRiUu u djas u djkoas rFkk mDr lEifRr;ksa dks [kqnZ cqnZ ugha djsa rFkk cspku jgu gLrkUrfjr ugha djas o ;Fkkor fLFkfr cuk, j[kasA 5 & [kpkZ eqdnek fnyok;k tkoasA 6 & vU; dksbZ vuqrks"k tks U;k;ky; mfpr le>s oknhx.k ds gd esa izfroknhx.k ds fo:) vkrk Qjek;k tkosA Alongwith the suit, an application under Order 39, Rule 1 and 2 CPC was filed. 3. The appellant herein filed written statement, inter alia, relying on an agreement/ compromise dated 14.01.1958 executed between Goverdhan Singh and Madan Singh and another agreement dated 14.04.1968 executed between Chandraveer Singh and Vijay Singh. It was also claimed that in the earlier suit filed between the parties, the issue pertaining to the nature of the properties already stood concluded. 3. The appellant herein filed written statement, inter alia, relying on an agreement/ compromise dated 14.01.1958 executed between Goverdhan Singh and Madan Singh and another agreement dated 14.04.1968 executed between Chandraveer Singh and Vijay Singh. It was also claimed that in the earlier suit filed between the parties, the issue pertaining to the nature of the properties already stood concluded. It was alleged that the plaintiffs, after vacating the premises, regarding which, the decree dated 01.11.2001 was passed, had occupied other part of the Palace, which part was indicated in green colour in the map filed along with the written statement. It was claimed that except for the reoccupied portion marked in green colour in the map, the defendant was in possession of the suit property. Counter-claim seeking possession of the area marked in green in the map was also filed. 4. Reply to the TI application was also filed and averments made therein were denied. 5. It was claimed that except for the reoccupied portion marked in green colour in the map, the defendant was in possession of the suit property. Counter-claim seeking possession of the area marked in green in the map was also filed. 4. Reply to the TI application was also filed and averments made therein were denied. 5. The trial court by its impugned order dated 24.08.2016 after noticing the rival contentions indicated its finding as under:- 10 & mHk; i{kksa ds rdksZ ij euu fd;k] i=koyh dk /;kuiwoZd voyksdu fd;k x;kA 11 & fo}ku vf/koDrk izfroknh dk cgl esa rdZ jgk gS fd iwoZ okni= esa of.kZr laifRr xksfoUnfoykl] eqdqV egy o ikusjk uked iks'kZu ckcr~ U;k;ky; }kjk fu.kZ; ikfjr fd;k tk pqdk gS ,oa mldh fMdzh dh ikyuk Hkh gks pqdh gSA bl dkj.k izkFkhZx.k dks vc bl laifRr ckcr~ fdlh izdkj dk fookn mRiUu djus dk vf/kdkj ugha gS] izkFkhZx.k iwoZ okn es ikfjr fu.kZ; ls vkc) gSA bl laca/k esa U;k;ky; dk fouez er gS fd ekStwnk okn oknhx.k }kjk foHkktu tk;nkn ckcr~ izLrqr fd;k x;k gS ,oa izkFkhZx.k }kjk fookfnr laifRr xksfoUnfoykl] eqdqV egy o ikusjk uked iks'kZu ckcr~ vuqrks"k Hkh ugha pkgk x;k gS tSlk fd izkFkZuk i= o utjh uD'ks ls nf'kZr gksrk gSA rFkk iwoZ okn esa ikfjr fMdzh dh ikyuk Hkh dh tk pqdh gSA bl izdkj gLrxr okn esa fookfnr laifRr iwoZ okn ls fHkUu gS rFkk gLrxr izdj.k esa pkgk x;k vuqrks"k Hkh iwoZ okn ls fHkUu gSA 12 & gLrxr ekeys esa of.kZr fookfnr laifRr;ks dk LokfeRo i{kdkj dh lk{; ys[kc) fd, fcuk r; ugha fd;k tk ldrk gS tcfd izfroknh Hkh oknxzLr laifRr;ksa ij izkFkhZx.k ds dCts dks Lohdkj djrk gSA tgka rd i{kdkj ds e/; fnukad 14-01-1958 dks gq, le>kSrs dk iz'u gS] ;g fcUnw Hkh lk{; dks eksgrkt gS ftldk fuLrkj.k ewy izdj.k esa lk{; ys[kc) fd, tkus ds i'pkr~ gh fd;k tk ldrk gSA 13 & tgka rd izFken`"V~;k fookfnr laifRr ij dCts dk iz'u gS] Lo;a izfroknh us tokc izkFkZuk i= ds iSjk la- 17 eas izkFkhZx.k dk dCtk gksuk ekuk gS rFkk ;g Hkh of.kZr fd;k fd Fkkuk fctkSfy;k }kjk dksbZ dk;Zokgh ugah fd, tkus ds dkj.k izfrizkFkZuk i= ds lkFk dCts dks gVkus ckcr~ ls }kjk izLrqr fd;k tk jgk gSA 14 & bl izdkj Åij fd, x, lexz foospu ds vuqlkj tgka fd gLrxr ekeysa eas rF; ,oa fof/k ds iz'u fufgr gS] ftudk fuLrkj.k ewy izdj.k esa lk{; ys[kc) fd, tkus ds i'pkr~ gh fd;k tk ldrk gSA izdj.k dh bl LVst ij tgka fd fookfnr laifRr;ksa ij izkFkhZx.k dk Hkh dCtk gS] izkFkhZx.k ds i{k esa izFken`"V~;k ekeyk cuuk ik;k tkrk gSA fygktk ;g fcUnw izkFkhZx.k ds i{k esa r; fd;k tkrk gSA 6. A look at the above findings would indicate that the trial court came to the conclusion that the relief claimed in the present suit was different from the earlier suit between the parties, the title cannot be decided without seeking evidence from the parties, defendant has accepted the possession of the plaintiffs and relying on para-17 of the reply to the TI application and the fact that a counter claim seeking possession of the property marked in green had been filed by the defendant, the trial court found prima facie case in favour of the plaintiffs and granted injunction as under:- 16 & QyLo:i izkFkhZx.k dh vksj ls izLrqr vLFkkbZ fu'ks/kkKk dk izkFkZuk i= Lohdkj fd;k tkdj vkns'k fn;k tkrk gS rkfd QSlyk ewy okn foi{kh xksfoUnfoykl] eqdqV egy o ikusjk uked iks'kZu ds vykok x<+ fctkSfy;k ds fdlh Hkh Hkkx ij dCtk ugha djsa] u djkosa] izkFkhZx.k dks xksfoUnfoykl] eqdqV egy o ikusjk uked iks'kZu ds vykok x<+ fctkSfy;ka ls csn[ky uk djsa] u djkosa muds mi;ksx&miHkksx esa fdlh izdkj dh ck/kk mRiUu ugha djs] 'ks"k oknxzLr laifRr;ksa esa oknhx.k ds fgLls ds mi;ksx&miHkksx esa ck/kk mRiUu u djs] [kqnZ&cqnZ ugha djs o ;Fkkor~ fLFkfr cuk, j[ksA 7. It is submitted by learned counsel for the appellant that the trial court committed error in recording a finding of existence of prima facie case in favour of the plaintiffs. It was submitted that the plea raised by the appellant and the material available on record has not been considered at all and only by way of cursory observations, the finding has been arrived at. Further submissions were made that the trial court has formed its opinion about the possession of the plaintiffs on account of para-17 of the reply and the prayer made in the counter claim seeking possession. Further submissions were made that the trial court has formed its opinion about the possession of the plaintiffs on account of para-17 of the reply and the prayer made in the counter claim seeking possession. However, the said assertion in para-17 and the prayer made in the counter claim was confined to a small portion of the suit property, however, an injunction has been granted qua the entire property, which has been made the subject matter of the suit, qua which, it is not even the case of the plaintiffs that they were in possession and in fact they are not in possession of the said part of the suit property and in grab of the injunction granted by the trial court, now they were seeking to interfere in the possession of the appellant and, therefore, the order impugned deserves to be quashed and set aside. 8. With reference to the findings recorded between the parties in the earlier suit as well as various pleadings between the parties, it was sought to be emphasized by counsel for the appellant that except for the part of the suit property, which the defendant after the execution of the earlier decree dated 01.11.2001, reoccupied, they were not in possession of any part of the suit property and, therefore, the injunction as granted by the trial court deserves to be quashed and set aside. 9. It is submitted that the very fact that the plaintiffs have claimed a declaration based on adverse possession necessarily means that the title of the appellants is conceded by them and, therefore, the respondents have no right to claim the injunction against the true owner. 10. Learned counsel appearing for the respondents vehemently opposed the submissions made by learned counsel for the appellant. It was submitted that the appellant-defendant was seeking to assert right in the entire suit property based on the decree dated 01.11.2001, which was confined to Govind Vilas, Mukut Mahal and Panera of Garh Bijoliya. It was submitted that there is no dispute that the property in question belonged to Late Rao Sawai Prithvi Singhji and, therefore, the appellant cannot claim exclusive title over the suit property. 11. Submissions were made that the documents dated 14.01.1958 and 14.04.1968, being relied on by the defendant are not admissible in evidence. It was submitted that there is no dispute that the property in question belonged to Late Rao Sawai Prithvi Singhji and, therefore, the appellant cannot claim exclusive title over the suit property. 11. Submissions were made that the documents dated 14.01.1958 and 14.04.1968, being relied on by the defendant are not admissible in evidence. Further submissions were made that the plaintiffs since beginning i.e. even when the written statement to the earlier suit was filed have been asserting their possession qua the entire suit property and as the earlier suit was confined to three properties, the said decree in the said suit cannot preclude the plaintiffs from seeking partition of the rest of the property. 12. It was submitted that the possession of the plaintiffs, which is evident from the counter claim filed by the appellants seeking possession of a part of the suit property. It was also submitted that the trial court was justified in restraining the appellant from interfering in possession of the plaintiffs and to deal with the suit property and, therefore, the order impugned does not call for any interference. 13. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 14. As already noticed hereinbefore, the trial court while deciding the issue pertaining to prima facie case, relied on para-17 of the reply filed by the appellant to the application under Order 39, Rule 1 and 2 CPC for coming to the conclusion that the possession of the plaintiffs on the suit property was admitted. 14. As already noticed hereinbefore, the trial court while deciding the issue pertaining to prima facie case, relied on para-17 of the reply filed by the appellant to the application under Order 39, Rule 1 and 2 CPC for coming to the conclusion that the possession of the plaintiffs on the suit property was admitted. Para-17 of the reply reads as under:- 17 & ;g gS fd izkFkZuki= dh dye la[;k 17 ftl izdkj fy[kh vlR; gksus ls vLohdkj gSA lEiw.kZ x< fctksfy;k tokcnkrk foi{kh ds dCts vkf/kiR; dk gSA fnuakd 11-08-2015 dks okLrfod ?kVuk ds lac/k esa ,Q vkbZ vkj ntZ djokbZ ftlls cpko ds iz;kstu ls ;g nkok >wBs rkSj izLrqr fd;k gSA izdj.k la[;k 85@83 bZ-nh- esa fookfnr tk;nkn ds vykok 'ks"k x< tokcnkrk foi{kh dk gh dCtk gS egt vU; fgLlkas ij izkFkhZx.k }kjk dCtk djus dk iz;kl fd;k x;k bl dkj.k ,Q vkbZ vkj ntZ djokbZ xbZ bl dkj.k 'ks"k fgLls ds ckcr tokcnkrk foi{kh ds dCtk izkIrh ds Dyse dh vFkok mlds fe;kn ckgj gks tkus lacfU/kr rF;ksa dks dksbZ iz'u gha mRiUu ugha gksrk gSA fnuakd 11-08-2015 dks U;k;ky; }kjk ikfjr fMdzh dh ikyuk esa ftu lEifR;ksa dk dCtk U;k;k;y; ds lsy vehu ds ekQZr izkIr fd;k] ysfdu tokcnkrk foi{kh dks fMdzh dh ikyuk esa dCtk fnyk;s tkus ds nksjku x< ds ftu fgLlks ds laca/k esa dCts;kch dh fMdzh U;k;ky; }kjk ikfjr dh xbZ] mlls en~;quku dk dCtk gVok;k tkdj tokcnkrk foi{kh fMdzhnkj dk dCtk djok;k x;k ftlds tokcnkrk foi{kh fMdzhnkj }kjk rkyk yxk;k x;k] muls leku ckgj fudky dj x< esa gh vU; fgLls esa cjkens o tukuk M~;ks<+h es j[k dj iqu% dCtk djus dh dksf'k'k dh ftuds laca/k esa rRdky gh iqfyl Fkkuk fctksfy;k esa izFke lwpuk fjiksVZ ntZ djokbZ xbZ ftldh ,Q vkbZ vkj la[;k 220@2015 gS ysfdu iqfyl Fkkuk fctksfy;k }kjk en;wu ds fo:) tokcnkrk foi{kh fMdzhnkj }kjk ntZ djokbZ xbZ ,Q vkbZ vkj ds lacU/k esa jktuSfrd laj{k.k ds rgr dksbZ dk;Zokgh ugha dh xbZ ftlds dkj.k dCts;kch dh fMdzh ds rgr [kkyh djok;s x;s fgLls ls vU; fgLls ij ftlesa en~;wu }kjk leku j[kk x;k og vc rd Hkh mlh vuq:i j[kk gqvk gksus ds dkj.k U;k;ky; }kjk ikfjr dCts;kch dh fMdzh ls fHkUu fgLls ij en~;wu vFkkZr bl okn ds izkFkhZx.k }kjk iqu% ml fgLls ij viuk dCtk gksuk Dyse djus yxs gS rFkk egt mlh fgLls ij ftl ij izkFkhZx.k }kjk U;k;ky; }kjk dCts;kch ds okjUV dh ikyuk ds nksjku vU;a= LFkku ij leku j[k dj dCtk dj fy;k mlls tokcnkrk foi{kh vFkkZr fMdzhnkj }kjk ugha gVk;s tkos bl ckcr ekeys dks fookfnr cuk;s j[kus ds fy;s vlR; ,oa vk/kkjghu rF;ks ds vk/kkj ij rFkk rF;ksa dks rksMejksM dj ,oa xqekfQjkdj U;k;ky; ds le{k izLrqr djrs gq, ;g izkFkZuki= izLrqr fd;k gS] pqafd izkFkhZx.k rks jktuSfrd lja{k.k izkIr gS rFkk tokcnkrk foi{kh iw.kZr;k U;kf;d izfdz;k esa fo'okl djrk gSA bl dkj.k izkFkhZx.k en~;wu }kjk vukf/kd`r rkSj vU;a= LFkku ij leku j[k dj ml ij dCtk cuk fy;s tkus ds ckotwn Hkh fdlh izdkj dh >cju ,oa cyiwoZd dk;Zokgh izkFkhZx.k ds fo:) ugha dh rFkk iqfyl }kjk Hkh ,Q vkbZ vkj ntZ fd;s tkus ds ckotwn Hkh muds fo:) dksbZ dk;Zokgh ugha fd;s tkus ds dkj.k tokcnkrk foi{kh }kjk izkFkhZx.k ds fo:) bl izfrizkFkZuki= ds lkFk fnukad 11-08-2015 dks fd;s x;s dCts dks gVkus ckcr ls nkok izLrqar fd;k tk jgk gSA tokcnkrk foi{kh }kjk ekuuh; U;k;ky; ds le{k ftl fgLls ds laca/k esa dCts;kch ckcr vuqrks"k pkgk tk jgk gS mls U;k;ky; ds le{k Li"VrkSj nf"kZr djus ds iz;kstu ls bl izfrizkFkZuki=@ls nkos ds vuqyXud ds :i esa uD'kk ^^v layXu fd;k tk jgk gS tks bldk vfHkUu vax gSA bl uD'kk&v lEiw.kZ x< fctksfy;k dk gS ftlesa fiys jxa ls nf'kZr Hkkx og Hkkx gS ftlds lac/k esa flfoy U;k;ky; fctksfy;k }kjk izdj.k la[;k 85@83 bZ-nh- esa dCts;kch ckcr fMdzh ikfjr dh xbZ gS rFkk gjs jax ls nf'kZr Hkkx og Hkkx gS ftl ij izdj.k la[;k 85@83 bZ-nh- esa ikfjr fMdzh dh bZtjk; ds nksjku fnukad 11-08-2015 dks leku j[k fn;k ,oa ml ij orZeku rd dkfct gSA bl izdkj ls okn ds tfj;s uD'kk&v esa gjs jax ls nf'kZr tk;nkn dh dCts;kch dh fMdzh ckcr tokcnkrk foi{kh }kjk izkFkhZx.k ds fo:) vuqrks"k izkIr fd;k tkuk rFkk 'ks"k lEiw.kZ x< ds mi;ksx miHkksx ,oa dCts vkf/kiR; esa tokcnkrk foi{kh dks fdlh izdkj vojks/k ,oa ck/kk mRiUu ugh djs] bl ckcr izkFkhZx.k ds fo:) LFkkbZ fu'ks/kkKk dh fMdzh ikfjr fd;s tkus ckcr okni= izLrqr fd;k x;k gSA bl izdkj izkFkZuki= vk/kkjghu gSA 15. A bare reading of the above portion of the reply would indicate that the appellant by filing a map along with the counter claim specifically indicated by green colour, the portion, which according to the appellant was in possession of the plaintiffs. However, the trial court as noticed hereinbefore, by merely relying on the said assertion in the reply, has while granting the injunction has granted relief identical to the relief as claimed in the plaint pertaining to the entire Garh Bijoliya other than Govind Vilas, Mukut Mahal and Panera and other fourteen suit properties, regarding which, absolutely no assertion whatsoever had been made in the reply to the TI application admitting the possession of the plaintiffs. 16. The trial court failed to consider the most crucial aspect of the matter which was prerequisite before granting injunction i.e. the possession of either of the parties over the entire suit property, which includes Garh Bijoliya as well as fourteen other suit properties. The failure of the trial court to consider the said aspect and by merely relying on reply, which apparently pertained to a minuscule part of the suit properties clearly vitiates the order passed by the trial court. The trial court, as would be noticed from the findings reproduced hereinbefore, has without even adverting to the foundational facts while considering the aspect pertaining to the prima facie case of the plaintiffs has by merely indicating that all aspects would only be considered after evidence is led by the parties has jumped to a conclusion regarding availability of a prima facie case. The said approach of the trial court without even considering the plea raised by the defendants in the written statement also cannot be sustained. 17. However, as the trial court has not dealt with the matter in a proper/correct perspective and contrary to the settled practice, it would be appropriate to remand back the matter to the trial court to decide the application filed by the plaintiffs under Order 39, Rule 1 and 2 CPC afresh. 18. Consequently, the appeal filed by the appellant is partly allowed. The impugned order dated 24.08.2016 passed by the trial court is quashed and set aside. The matter is remanded back to the trial court to re-decide the application seeking temporary injunction in light of the observations made hereinbefore after hearing the parties. 18. Consequently, the appeal filed by the appellant is partly allowed. The impugned order dated 24.08.2016 passed by the trial court is quashed and set aside. The matter is remanded back to the trial court to re-decide the application seeking temporary injunction in light of the observations made hereinbefore after hearing the parties. The trial court shall decide the application within a period of six weeks from the date a certified copy of this judgment is placed before it. 19. Till the matter is re-decided by the trial court, the parties shall maintain status quo regarding the suit property and the consequence will abide by the final directions issued by the trial court on the application. 20. It is made clear that the trial court will re-decide the application only in light of observations made hereinbefore, however, it shall not be influenced by the fact that the order passed earlier stands set aside by this Court. 21. No order as to costs.