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2017 DIGILAW 2130 (RAJ)

Banti v. Mahesh Chand

2017-10-04

INDERJEET SINGH

body2017
JUDGMENT : Inderjeet Singh, J. The instant appeal has been filed against the order dated 28.1.2016 passed by the Additional District Judge No. 1 Bayana, District Bharatpur. 2. The brief facts of the case are that the appellants have filed a suit for declaration, cancellation of sale deed dated 29.6.2015 executed in favour of respondents No. 1 to 4 by respondent No. 5 and further prayed for permanent injunction on or about 13.7.2015 on the ground that suit property which is in dispute as mentioned in the plaint is an ancestral property and was in the name of Arjun S/o Nanda, grandfather of appellants. Arjun was having two sons, one Genda and Second Lala Ram (respondent No. 5). It is further stated in the plaint that after the death of Arjun-Grandfather of the appellants, share of the land was mutated in the name of respondent No. 5 and the appellants have equal share in the disputed property. It was further stated that the respondent No. 5 without taking consent of the appellants and without prior permission of the Court sold the property to respondent No. 1 to 4 beyond his share on 29.6.2015 and executed the sale deed in their favour. After knowing the aforesaid facts, the appellants filed the suit before the trial court. Along with the suit, the appellants have also submitted an application under Order 39, Rule 1 and 2 CPC for temporary injunction against the respondents No. 1 to 4. The respondents-defendants filed reply to the said application stating therein that they are bona fide purchasers of the land in dispute and they have purchased the property through registered sale deed and after paying consideration, possession of the same has been handed over to them by respondent No. 5 - Lala Ram. 3. Counsel for the appellant has submitted that the respondent No. 5 who is the father of the appellants has no right to sale the land in dispute as the land in dispute is their ancestral property and they have also the legal right in the property. Counsel for the appellant further stated that the learned trial court has decided the temporary injunction application beyond the pleadings of the parties. It is further stated that the property is the ancestral property or not, the issue can be decided only after taking the evidence of the parties. Counsel for the appellant further stated that the learned trial court has decided the temporary injunction application beyond the pleadings of the parties. It is further stated that the property is the ancestral property or not, the issue can be decided only after taking the evidence of the parties. Counsel for the appellants further argued that the learned trial court has decided the temporary injunction application by conducting the mini trial. Lastly, he prayed that the trial court has wrongly dismissed the temporary injunction application filed by the plaintiff appellants. 4. Counsel for the appellant has relied on the decision of the Supreme Court in the case of Suraj Bhan & Ors. v. Financial Commissioner & Ors. : (2007) 6 SCC 186 . He has also relied on the decision of this Court in the case of Barkat Khan & Anr. v. Shimla @ Seema (CMA No. 1650/2012) decided on 19.9.2012. 5. On the other hand, counsel for the respondents submits that the respondents No. 1 to 4 are bona fide purchasers of the land in dispute and they have purchased the property after paying consideration through registered sale deed. It was also stated that the land in dispute is entered in the name of seller i.e. respondent No. 5 since 1990 and the appellants have never raised any objection to it. It is further stated that due to increase in rates of property, the appellants in collusion with respondent No. 5 filed suit before the trial court just to extract more money from the respondents. Counsel further submits that after receiving the full amount of consideration and after registration of sale deed of the disputed property, the respondent No. 5 has also lodged an FIR against the respondents No. 1 to 4 and the police after investigation filed Final Report in the said FIR. Lastly, counsel for the respondents submits that the trial court has not committed any illegality in dismissing the temporary injunction application filed by the appellants. 6. Heard learned counsel for the parties on appeal as well as on application under Order 41, Rule 27 CPC. 7. Lastly, counsel for the respondents submits that the trial court has not committed any illegality in dismissing the temporary injunction application filed by the appellants. 6. Heard learned counsel for the parties on appeal as well as on application under Order 41, Rule 27 CPC. 7. The trial court while deciding the prima facie case has taken into consideration the fact that Lala Ram is the head of the family and father of the appellants and he was having the possession over the land in dispute since 1990 and the appellants or other family members have never raised any objection to it. The trial court has further taken into consideration the fact that the appellants have purchased the land in dispute through the registered sale deed. The argument of the counsel for the appellant regarding property being ancestral and respondent No. 5 has no right to sale the same, in my considered opinion, the trial court has taken into consideration this aspect of the matter and prima facie found that the land in dispute was in the name of Shri Lala Ram since 1990 and the appellants have neither objected to it nor they have filed any suit or revenue proceedings claiming their share in the said property. The further contention raised by the counsel for the appellant regarding deciding the temporary injunction application beyond the pleadings of the parties, in my considered view, the learned trial court while deciding the prima facie case has taken a possible view of the matter on the basis of the registered sale deed and more particularly, the complete amount of consideration was paid to respondent No. 5 - Lala Ram. It has also been mentioned in the registered sale deed that he is in need of money for family affairs. Thus, the trial court has rightly not found any prima facie case for grant of temporary injunction in favour of the appellants and rightly dismissed the application under Order 39, Rule 1 and 2 filed by the appellants. 8. The judgments referred by the counsel for the appellant are not applicable in the facts of the present case as the present case relates to granting temporary injunction and at the stage of granting temporary injunction, the trial court has to see only whether any prima facie case is made out in favour of the plaintiff or not. 9. 8. The judgments referred by the counsel for the appellant are not applicable in the facts of the present case as the present case relates to granting temporary injunction and at the stage of granting temporary injunction, the trial court has to see only whether any prima facie case is made out in favour of the plaintiff or not. 9. The Hon'ble Supreme Court in the case of Mohd. Mehtab Khan and Ors. v. Khushnuma Ibrahim Khan and Others, (2013) 9 SCC 221 has held as under:- "20. In a situation where the learned Trial Court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the Trial Court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd." 10. In view of the above, I find no force in the arguments advanced by the counsel for the appellants and in view of the judgment passed by the Hon'ble Supreme Court in the case of Mohd. Mehtab Khan and others. (supra), the view taken by the trial court in this matter was a possible view. In view of the above, I find no force in the arguments advanced by the counsel for the appellants and in view of the judgment passed by the Hon'ble Supreme Court in the case of Mohd. Mehtab Khan and others. (supra), the view taken by the trial court in this matter was a possible view. After a close look at the order passed by the trial court, in my considered opinion, the trial court has rightly observed that no prima facie case is made out in favour of the appellant for the reasons; firstly, the land in dispute was entered in the name of respondent No. 5 who is the father of the appellants since the year 1990 and since then he was having the possession over the land in dispute and the appellants have never objected to it. Secondly, the respondents No. 1 to 4 have purchased the land in dispute through registered sale deed after paying full amount of consideration and possession of the same has also been handed over by respondent No. 5 to respondents No. 1 to 4. Lastly, in the FIR lodged by respondent No. 5 against the respondent No. 1 to 4, the police after investigation has submitted a final report before the Competent Court. 11. In that view of the matter, the appeal as well as application under Order 41, Rule 27 filed by the appellants is dismissed. Stay application also stands dismissed.