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Rajasthan High Court · body

2022 DIGILAW 1571 (RAJ)

Rajesh Sharma v. Banwari Lal Sharma

2022-05-13

SUDESH BANSAL

body2022
ORDER 1. The defect, as pointed out by the registry in SBCMA No.1083/2022, is dispensed with. 2. Since in all four appeals, the impugned order dated 03.02.2022 is common and parties are common, hence with the consent of learned for all parties, all appeals have been heard together and would stand disposed of by this common order. 3. Appellant-plaintiff-Rajesh Sharma has filed two applications for Temporary Injunction under Order 39 Rule 1 and 2 read with Section 151 CPC. First application No.70/2016 has been partially allowed vide order dated 03.02.2022, hence the plaintiff has challenged the order dated 03.02.2022 by way of filing appeal No.940/2022 to the extent of declining the temporary injunction, whereas against the grant of Temporary Injunction, the defendant No.1/1 and 2 have filed appeal No.1083/2022 and defendant Nos.3, 4, 5 and 6 have filed appeal No. 997/2022. 4. Second application for Temporary Injunction No.4/2022 has been dismissed vide separate order dated 03.02.2022 and their against, appellant-plaintiff has filed appeal No.937/2022. 5. It appears from the record that appellant-plaintiff-Rajesh Sharma has instituted a civil suit for possession, partition, declaration, rendition of account and mandatory as also prohibitory injunction against his father, mother, brothers and sister. The plaintiff has relied upon one partition deed dated 13.06.1997 alleged to be executed between him and his father and through this partition deed, plaintiff claims his share in the properties mentioned in para No.1 of the plaint. The plaintiff, by giving reference of the partnership firm M/s Jaipur Murti Museum, claims that the business of partnership firm was joint and out of firm income, the properties mentioned in para No.5 were purchased. In para No.7, plaintiff referred about the deposits in the bank account through FDR & other savings, which were alleged to be from the income of the partnership firm and for tax purposes. The plaintiff has also referred about one oral partition and the document of family settlement dated 03.06.2014 whereby and whereunder movable and immovable properties were agreed to be divided among the family members. Plaintiff claims that through this family settlement, the properties mentioned in para No.9 were agreed to be given in his share. The plaintiff has also referred about one oral partition and the document of family settlement dated 03.06.2014 whereby and whereunder movable and immovable properties were agreed to be divided among the family members. Plaintiff claims that through this family settlement, the properties mentioned in para No.9 were agreed to be given in his share. Plaintiff submits that the family settlement dated 03.06.2014 was partially acted upon but has not been acted for transferring the properties to the plaintiff and later on defendants declined the family settlement, hence the present suit has been filed on or near about in the month of October, 2016. 6. By perusal of plaint, it appears that the plaintiff has prayed for multiple reliefs. Alongwith plaint, the plaintiff also filed an application for Temporary Injunction being No.70/2016. During pendency of his first application for Temporary Injunction, plaintiff filed second application for Temporary Injunction being No.4/2022. In the application for Temporary Injunction, plaintiff has prayed for to grant Temporary Injunction in relation to the properties mentioned in para Nos. 2 (1) and (2) and 6 (1) to (10) of the application (para 1 & 5 of the plaint). In second application for Temporary Injunction, plaintiff mainly prayed to restrain the defendants from demolishing and raising any construction in the property Municipal No.1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur and for maintaining status quo. 7. Defendants have filed reply to both applications for Temporary Injunction and more or less their stand is similar. According to defendants, plaintiff individually did not get any share in the properties under the partition deed dated 13.06.1997 as it was a partition among the father’s family. The firm, Jaipur Murti Museum has been dissolved through dissolution deed dated 05.04.2008, since thereafter, no jointness of business is there in the family. One another firm namely, Jaipur Murti Palace was also there. According to defendants, the document of family settlement dated 03.06.2014 was executed under the coercion and undue pressure, as such same has been cancelled by the defendants by issuing a legal notice dated 07.04.2016. According to defendants, the properties purchased in the name of defendants are their individual properties and the plaintiff has no claim for partition against such properties and no Temporary Injunction can be granted in favour of the plaintiff for their individual properties. 8. According to defendants, the properties purchased in the name of defendants are their individual properties and the plaintiff has no claim for partition against such properties and no Temporary Injunction can be granted in favour of the plaintiff for their individual properties. 8. As far as the property No.1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur, is concerned, the complete house, except the shops, was purchased on 27.04.2011 in the name of defendant No.2-Smt. Laxmi Devi and plaintiff has no possession over this property. Thus, no injunction for this property can be granted in favour of the plaintiff. 9. The trial court has decided both applications for Temporary Injunction by separate orders. In Temporary Injunction No.70/2016, the trial court has observed that the partnership firm was dissolved in the year 2008. Thus, the trial court has prima facie made out a fine distinction between the two set of properties, purchased prior to 2008 and purchased post to 2008. The document of family settlement dated 03.06.2014 has been observed in the nature of transfer of properties and due to want of registration, the same has prima facie not been relied upon. The trial court, after a detailed discussion, has allowed the Temporary Injunction partially, granting an injunction order in relation to the properties mentioned in para No.2 (1 & 2) and Para No.6 (2, 3, 4, 5, 6, 7 and 10) but has declined to grant temporary injunction in relation to the properties mentioned in para No.6 (1, 8 and 9) as well as in relation to the FDR and bank deposits. In relation to property House No.1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur, prima facie it has been observed that the same is in possession of defendants and was purchased on 27.04.2011, accordingly the prayer of plaintiff to maintain status quo in relation to this property was declined. 10 Heard learned counsel for both parties, perused the impugned orders, relevant documents and record placed before this Court. 11. The counsel for plaintiff vehemently argued that the document of family settlement itself does not create, declare, assign or extinguish any right title interest of the parties in the immovable properties but only indicates the allocation of the properties in the share of respective parties by executing another documents to create, declare and assign the rights of the parties, hence, this document does not require registration. Reliance has been placed on the judgment of the Hon’ble Supreme Court, delivered in the case of K. Arumuga Velaiah Vs. P.R. Ramasamy & Ors. Reported [ (2022)1 CTC 698 ]. Learned counsel submits that the learned trial court committed illegality and jurisdictional error in discarding the document of family settlement from consideration and declining to grant temporary injunction in relation to the properties mentioned in Para No.6 (1, 8 and 9) of the application for temporary injunction. The counsel for plaintiff also submits that respondents are raising construction over the property house No.1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur and inclined to change its position, therefore, the status quo should be ordered to be maintained for this property and the trial court is not justified in dismissing the second application for temporary injunction. 12. Per contra, the counsel appearing for the defendants submit that the trial court has not considered the fact that another firm M/s Jaipur Murti Palace in the partnership of defendant Nos.2 and 3 was also carrying on the business but the income generated out of this firm has not been taken into consideration. The plaintiff remained partner in the firm M/s Jaipur Murti Museum only in between 1997 to 2008. It has been urged that though there is a dispute of partition, possession of the suit properties, however at the most the trial court could have passed injunction order to the extent of restraining the alienation but issuing an injunction order to maintain the status quo in relation to the personal properties of the defendant is unjustified as the defendants would not be able to use their properties comfortably and even would not be able to carry out even the necessary alteration/construction in case of any future family exigencies arise. Hence, the impugned injunction order passed by the trial court should be either quashed or at least in the alternative be modified to the extent of alienation. 13. It is no more res integra that the order passed on the application for Temporary Injunction are discretionary and equitable in nature. The jurisdiction of the appellate court to interfere with the orders on the application for Temporary Injunction is limited. 14. 13. It is no more res integra that the order passed on the application for Temporary Injunction are discretionary and equitable in nature. The jurisdiction of the appellate court to interfere with the orders on the application for Temporary Injunction is limited. 14. It is also well established that while passing interim injunction order under Order 39 Rule 1 and 2 CPC, the Court is required to consider:- (i) Whether there is a prima facie case in favour of the plaintiff; (ii) Whether the balance of convenience is in favour of passing the order of injunction; and (iii) Whether the plaintiff will suffer irreperable injury, if an order of injunction would not be passed as prayed for? Hence, this Court is required to consider as to whether these well settled principles relating to grant/refusal of the temporary injunction have been followed by the trial court and whether the impugned orders suffer from arbitrariness and perversity, discarding any relevant piece of record. This Court is aware about the proposition of law that the appellate court should not interfere with the injunction orders passed by the trial court, merely on the ground that another view was possible and if the view expressed by the trial court is a possible view, the appellate court should not substitute its own discretion over the judicial discretion exercised by the trial court. 15. Considering the appeals at hand, the trial court has passed an injunction order for not transferring and for not changing/altering the record and status of the properties, mentioned in Para No.2 (1 & 2) and para No.6 (2,3,4,5,6,7 and 10) of the application for temporary injunction No.70/2016 but has declined to grant any injunction order in relation to the immovable properties mentioned in para No.6 (1, 8 and 9) as also in relation to the movable properties of bank deposits and more particularly, has dismissed the second application for temporary injunction in relation to House No. 1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur. The trial court has declined to consider the document of family settlement dated 03.06.2014 on account of its non-registration. A perusal of this document goes to show that this document was executed and signed by all the respective parties and its execution has not been denied by any of the party. The trial court has declined to consider the document of family settlement dated 03.06.2014 on account of its non-registration. A perusal of this document goes to show that this document was executed and signed by all the respective parties and its execution has not been denied by any of the party. For the immovable property House No. 1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur, it has been mentioned in the family settlement that this property is in the ownership of Smt. Laxmi Devi (Defendant No.2) but shall come in the ownership of Rajesh Sharma (Plaintiff). On perusal of the document as a whole, it can not be observed that the document is not admissible in evidence for want of registration for any purpose, however, the evidential value of this document including the issue as to whether the registration is essential or optional and as to whether this document of family settlement is admissible in evidence or not and as to whether it can be read for the collateral purposes at least, shall be considered by the trial court on merits during the course of recording the evidence or at the time of deciding the suit finally on merits, but at this stage, once the execution of document is not in dispute between the parties, the same may not be discarded as a whole from consideration. 16. The plaintiff’s claim is that the House No. 1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur came in his share under the family settlement but at the same time, plaintiff himself admits that defendants dispossessed the plaintiff from this house on 02.10.2016 i.e. prior to filing of the present suit and plaintiff himself has prayed a relief for actual possession with mesne profits for this properties as transpires from the perusal of plaint itself. Thus, it is not in dispute that plaintiff is not in actual and physical possession of this House No. 1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur at least on the date of filing the present suit. 17. As far as, looking to the nature of dispute and relationship of the parties, it is difficult to draw any inference that out of the suit properties, the property purchased in individual name of any party is his own purchased property or jointly purchased by few of parties or purchased out of the joint fund of family business. 17. As far as, looking to the nature of dispute and relationship of the parties, it is difficult to draw any inference that out of the suit properties, the property purchased in individual name of any party is his own purchased property or jointly purchased by few of parties or purchased out of the joint fund of family business. It has been informed that initially, the trial court passed the ad-interim injunction order dated 16.10.2016 restraining both the parties from alienation of any of the suit properties and stay order was remained in force until passing the final order dated 03.02.2022 on the application for temporary injunction. Though, the distinction made by the trial court in the properties purchased prior to 2008 and post to 2008 seems to be just and proper. However, considering the nature of dispute and the business carrying on in the two partnership firm jointly, without expressing any opinion on merits, at the stage of deciding the application for temporary injunction, the interest of justice would be sub-serve that while maintaining the injunction order dated 03.02.2022 passed by the trial curt, the defendants be restrained from alienating the properties mentioned in Para No.6 (1, 8 and 9) also and to this extent only, order dated 03.02.2022 passed on the first application for temporary injunction No.70/2016 is modified. 18. So far as, seeking prayer for interim injunction to restrain the construction work on the House No. 1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur is concerned, the ongoing construction work, if stayed, would cause irreperable injury to the respondents. The Hon’ble Supreme Court, in the case of Dalpat Kumar Vs. Prahlad Singh, Reported in [ (1992)1 SCC 719 ] has observed that prima facie case by itself is not sufficient to grant injunction but the court further has to satisfy that the party claiming injunction would suffer irreperable injury, in case of declining the injunction order and whose favour, the balance of convenience lies. This Court, finds that it is not just and proper to restrain the defendants from raising any construction on House No. 1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur being and having the actual possession of this property as registered owner. This Court, finds that it is not just and proper to restrain the defendants from raising any construction on House No. 1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur being and having the actual possession of this property as registered owner. Hence, the prayer to stay the construction work, if any, the House No. 1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur is declined and order of dismissal of second application No.4/2022 for temporary injunction is sustained. 19. As far as the grievance raised by the counsel for the defendants that the injunction order has been passed including their personal properties that too restraining the defendants from changing/altering the present status of such properties would create hardship in future is concerned, this Court finds that in case in future exigencies arise to the defendants to carry out necessary repairing/construction work in the properties in their possession, the remedy under the relevant provisions of law is available. The injunction order passed under Order 39 Rule 1 and 2 CPC during pendency of suit, in the changed circumstance and for other reasons, can be varied/modified, invoking the provisions of order 39 Rule 4 C.P.C, if it is necessary to do so in the interest of justice. At this stage, the defendants could not point out any irreperable injury caused to them by injunction order passed in favour of the plaintiff, when a prime facie case has been found in his favour. The Hon’ble Supreme Court, in case of Maharwal Khewaji Trust Vs. Baldev Dass reported in [ AIR 2005 SC 104 ] has observed that the appellate Court ought to have allowed the changed of status quo of the properties during pendency of litigation, except in exceptional circumstances. Merely legal proceedings are likely to take a long time in conclusion, is not an exceptional circumstance. Hence, this Court is not inclined to interfere with the injunction order already passed by the trial court. 20. As far as the injunction order already passed by the trial court, this Court does not find any perversity therein as the trial court has discussed the prima facie case, balance of convenience and irreperable injury before passing the order of injunction. 20. As far as the injunction order already passed by the trial court, this Court does not find any perversity therein as the trial court has discussed the prima facie case, balance of convenience and irreperable injury before passing the order of injunction. Thus, this Court, being an appellate court is not going to interfere with the injunction order already passed and has modified the injunction order to the extent of passing an additional injunction restraining the defendants from alienating the properties mentioned in para No.6 (1, 8 and 9) as well. 21. Before concluding the decision of appeals, it is made clear that the observation/findings passed by the trial court or by this Court while modifying the injunction order to the extent referred hereinabove, would not affect the rights of either of the parties to be adjudicated during the course of trial of the suit. All objections including admissibility, registration and the evidential value in relation to the document of family settlement shall remain opened to be raised by the parties and adjudicate by the trial court during the course of recording the evidence and at the time of passing the final judgment on merits in the suit. It is needless to say that any new construction raised by the defendants over the House No. 1993/15 Khunteto Ka Rasta, Chandpole Bazar, Jaipur, would not create any equity in their favour and the defendants would not claim any cost or advantage for the new construction, if raised. 22. With the aforesaid findings and observations, all appeals stand disposed of. 23. Any other pending application(s), if any, stand(s) disposed of. 24. A copy of this order be placed in each connected file.