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2022 DIGILAW 1640 (RAJ)

Mohan Lal v. Asha Devi

2022-05-18

RAMESHWAR VYAS

body2022
JUDGMENT Rameshwar Vyas, J. - The instant appeal under Section 104 read with Order 43 Rule 1 CPC has been filed by the plaintiff-appellant challenging the order dated 28.4.2022 (Exhibit-6) passed by the learned Additional District Judge, Gangapur, Bhilwara in Civil Misc. Case No. 8/2022 whereby second application under Order 39 Rule 1, 2 and 4 read with Section 151 CPC seeking temporary injunction sought by the plaintiff-appellant against respondent Nos. 1 and 2 Asha Devi and Nagar Palika (defendant No. 3 and 4 in the main suit) has been dismissed. 2. The brief facts of the case are as under:- Plaintiff-appellant herein has filed a civil suit (registered as Case No. 104/2015) against his brother, wife of brother, Asha Devi and Nagar Palika with the averments that he has filed a suit for partition with regard to the disputed property, registered as Civil Suit No. 12/2015, already pending before Additional District Judge No. 1, Bhilwara and the partition of the disputed property has yet not been made. Defendant Nos. 1 and 2 Shri Nandlal and Smt. Shanta Devi concealing the facts obtained Patta from the Municipality, Gangapur and on the basis of the said Patta, sold the property to defendant No. 3 Asha Devi (respondent No. 1 herein) on 24.11.2014 for a consideration of Rs. 12 Lac without any legal rights. In the suit, appellant prayed to cancel the allotment made in favour of the defendant Nos. 1 and 2 and also cancel the sale-deed executed by them in favour of defendant No. 3 Asha Devi (respondent No. 1 herein). He also sought relief against defendant Nos. 1 and 2 to execute sale-deed in favour of the plaintiff on basis of his per-emptory rights over the property. Alongwith the main suit, an application under Order 39 Rule 1 and 2 CPC seeking temporary injunction was also filed, which was registered as Civil Misc. Case No. 61/2015, and came to be decided on 19.8.2016 with the consent of the parties and thereby, respondents were restrained from alienating the disputed property. It is averred that thereafter, respondent No. 1 Asha Devi obtained permission of construction from the Nagar Palika, upon which plaintiff-appellant herein filed an application under Order 39 Rule 4 read with Section 151 CPC, which was registered as Case No. 3/2021 and presently pending in the Court of Additional District Judge, Gangapur, Bhilwara. It is averred that thereafter, respondent No. 1 Asha Devi obtained permission of construction from the Nagar Palika, upon which plaintiff-appellant herein filed an application under Order 39 Rule 4 read with Section 151 CPC, which was registered as Case No. 3/2021 and presently pending in the Court of Additional District Judge, Gangapur, Bhilwara. Thereafter, plaintiff-appellant again filed the application under Order 39 Rule 1 and 2 CPC which was registered as Civil Misc Application No. 8/2022 seeking temporary injunction in the mandatory form to the effect that construction on the disputed property be demolished. The said application was decided by the impugned order dated 28.4.2022 (Exhibit-6). Learned trial court while dismissing the application observed that plaintiff is not in the joint possession of the disputed property for which defendant Nos. 1 and 2 i.e. Nandlal and Smt. Shanta Devi have obtained Patta from the Municipality, Gangapur, Bhilwara. 3. Learned counsel for the appellant while challenging the impugned order contends that the defendants of the suit dispossessed the appellant from the disputed property with illegal help of police personnel and caused damage to his two-wheelers lying on that place for which he also submitted photographs for perusal of this Court. Learned counsel prays to restrain the respondent No. 1 Asha Devi from raising any construction on the disputed property for which he has claimed per-emptory rights. 4. Learned counsel for the respondent has opposed the appeal. As per his contention, after rejection of the first application for temporary injunction plaintiff has filed an application for modification of the order which was afterwards dismissed as not pressed. Thereafter, he filed an application under the provisions of Order 39 Rule 4 CPC, registered as Civil Misc. Case No. 3/2021 which is pending consideration before the trial court. Thereafter, the plaintiff-appellant filed another application seeking temporary injunction only against the purchaser, i.e. Asha Devi respondent No. 1 herein, which is not maintainable and the learned trial court has rightly dismissed the same. 5. Having regard to the rival submissions made by the learned counsel for the parties and after perusal of the record, it is admitted position that the first application (61/2015) seeking temporary injunction was disposed of on the basis of consent of the parties. However, in the said application defendants-respondents were not restrained from raising any construction over the disputed property. Having regard to the rival submissions made by the learned counsel for the parties and after perusal of the record, it is admitted position that the first application (61/2015) seeking temporary injunction was disposed of on the basis of consent of the parties. However, in the said application defendants-respondents were not restrained from raising any construction over the disputed property. It is also not in dispute that the application for modification of the said order has also been dismissed as not pressed. It is also not in dispute that one application No. 3/2021 filed under the provisions of Order 39 Rule 4 CPC is pending consideration before the trial court and still, the plaintiff-appellant herein has filed another application under the provisions of Order 39 Rule 1 and 2 CPC, wherein, original defendants have not been impleaded as party respondents. In the said application, appellant prayed to restrain the purchaser Asha Devi respondent No. 1 herein from raising any construction over the disputed property, which has been dismissed by the impugned order. 6. In the considered opinion of this Court, learned trial court has rightly dismissed the application seeking temporary injunction. The respondent No. 1 Asha Devi has purchased the property in the year 2014 from the defendant No. 1 and 2 of the original suit, who have obtained Patta from Nagar Palika. Learned trial court also found that the plaintiff is not in the joint possession over the disputed land. Plaintiff has claimed execution of the sale-deed in his favour on the basis of per-emptory rights. In the first temporary injunction dated 19.8.2016 respondents were not restrained from raising any construction over the disputed land. In view of above, now the appellant cannot obtain relief for demolition of the construction by filing the second application for temporary injunction in mandatory form. 7. In the above circumstances, no prima facie case is made out for grant of temporary injunction in favour of the appellant and the learned trial court has rightly dismissed the same. 8. Accordingly, the appeal being devoid of any merit is dismissed. 9. Stay application also stands dismissed.