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2022 DIGILAW 179 (JK)

Rajinder Kumar v. Manav Chouhan

2022-04-22

RAJNESH OSWAL

body2022
JUDGMENT : Rajnesh Oswal, J. This Civil 1st Miscellaneous Appeal has been filed by the appellants against the order dated 28.02.2019 (hereinafter referred to as the impugned order), passed by the Court of learned 2nd Additional District Judge, Jammu, (hereinafter referred to as the trial court) in an application for grant of interim relief filed in civil suit titled “Manav Chohan and another vs. Rajinder Kumar and another” by virtue of which the order dated 01.01.2019 granting interim injunction has been confirmed by the learned trial court. 2. The order has been assailed on the following grounds: (i) That the learned trial court has not considered the aspect pertaining to title of the respondents with regard to the House No. 496 and as such the respondents had no right of prior purchase with respect to the suit house bearing no 497, as one Bindu Gondi has already filed the suit with regard to House No. 496 on the basis of memorandum of family settlement. (ii) That the order impugned is liable to be set aside on the ground that the Jammu Municipal Corporation, has laid down steps/lanes over the common path that is alleged to be common outer entrance by the respondents and, as such, the respondents have no right of prior purchase with respect to the suit property. More so, there are sewerage holes and drainage in the common path. (iii) That the order impugned is liable to be set aside on the ground that the respondents have approached the learned trial court in the year 2019 to seek declaration with respect to the sale deed dated 03.03.2018, but the fact is that prior to the aforesaid sale deed, two more sale deeds dated 12.07.1990 and 04.07.1991 have been executed with respect to the suit house and the respondents in order to cover their delay and latches have concocted a false and frivolous story and as such, the respondents have no right to seek declaration with respect to the sale deed dated 03.03.2018. (iv) That the order impugned is further liable to be set aside on the ground that suit of the respondents is hit by Section 5(b) of the Right of Prior Purchase Act, because there is a deity of the appellant No. 2 in the suit property (v) That the order impugned is also liable to be set aside on the ground that respondents did not approach the learned trial court when the appellant No. 2 had started laying down whole structure of the suit property and when the whole structure of suit property was laid down by the appellant No. 2 and over which shuttering was installed, then only the respondents approached the trial court for grant of prohibitory injunction. It is because of ex-parte interim order, the appellant No. 2 stopped the construction over the suit property, thereby subjecting irreparable loss to the appellant No. 2. It is also stated that respondents have no prima-facie case in their favour as the title of the respondents was not clear. 3. Mr. Pawan Kundal learned counsel for the appellant vehemently argued that the appellants had taken specific plea with regard to the non-existence of right of prior purchase with respondents as both the houses were not having a common entrance but, there is a common passage and on the same, Municipal Corporation, Jammu has laid down tiles and made sewerage holes. He further argued that the respondents have not challenged the earlier two sale deeds executed with regard to the suit property and now respondents cannot enforce any right of prior purchase in the suit property. He also urged that the respondents filed the suit only when the appellant No. 2 had placed shuttering and it was only by the permission of this court that the appellant No. 2 removed shuttering because it was causing financial burden upon appellant No. 2 due to operation of the order of the learned trial court imposing restrictions upon the construction. He further vehemently argued that the learned trial court has fallen into grave error of law while rejecting prayer of the appellant No. 2 for permitting her to raise the construction and appellant No. 2 was ready to furnish an undertaking to remove the structure in the event of suit being decreed in favour of respondents, at her own cost. He further vehemently argued that the learned trial court has fallen into grave error of law while rejecting prayer of the appellant No. 2 for permitting her to raise the construction and appellant No. 2 was ready to furnish an undertaking to remove the structure in the event of suit being decreed in favour of respondents, at her own cost. He placed reliance on the judgment passed by Rajasthan High court in case titled “Akbar Ali vs. Ambalal” and also judgment reported in 1920 AIR(Lahore) 278 titled Nek Chand Vs. Tek Chand. 4. Per contra, Mr Sunil Kumar Maini vehemently argued that there is no force in the contention of the appellant No. 2 and that the respondents do not have any right of prior purchase as the Commissioner has specifically stated that there is one entrance to both the houses. He further argued that there is no deity or temple as alleged by the appellants in their written statement and further Municipal Corporation Jammu, has no concern with the common entrance at all. He further placed upon reliance upon the judgment passed by the Apex court in Maharwal Khewaji Trust (Regd) v. Baldev Das reported in 2004 0 Supreme 1331. 5. Heard and perused the record. Both the learned counsels submitted written submissions as well. 6. The facts necessary for the disposal of the present appeal are that respondents filed a suit for declaration to the effect that sale deed dated 03.03.2018 registered on the same date by Sub Registrar Jammu in respect of portion of house bearing No. 497 comprising of a bath room, two kitchens and four kacha rooms constructed on the land measuring 2.5 marlas (approximately) situated at Gali Baba Lal Ji, Jain Bazar Jammu is void ab-initio by reason of the fact that the respondents herein, had a statutory right of prior purchase with respect to the suit house in terms of Right of Prior Purchase Act, 1993 and possession of the suit house was also sought in terms of the Act(supra). Besides substitution of the names of the respondents as vendees in the sale deed dated 03.03.2018 executed by appellant No. 1 in favour of appellant No 2 was also sought for. Suit was instituted on the ground that father of the respondents vide sale deed dated 05.06.1986 purchased house no 496 situated at Daki Hajama Jammu from one Satish Kumar. Besides substitution of the names of the respondents as vendees in the sale deed dated 03.03.2018 executed by appellant No. 1 in favour of appellant No 2 was also sought for. Suit was instituted on the ground that father of the respondents vide sale deed dated 05.06.1986 purchased house no 496 situated at Daki Hajama Jammu from one Satish Kumar. After some time, he allowed one Bindu Gondi, cousin of the respondents to reside in the said house. The father of the respondents died on 12.01.2008 and thereafter the respondents stepped into his shoes and became owner of house purchased by their father. On 15.11.2018, the aforesaid Bindu Gondi promised the respondents that he would vacate the house within reasonable time. Thereafter, the respondents gained the knowledge of the sale deed dated 03.03.2018 executed by appellant No. 1 in favour of the appellant No. 2 and the same was in violation of the rights of the respondents under the Act (supra) because house No. 496 and house No. 497 i.e. the suit property are having a common outer entrance and the said entrance passes through house of the plaintiffs as the common entrance is surrounded by the house of the respondents from all the sides. It was because of the common outer entrance, the said suit was filed by the respondents as they claim to have a right of prior purchase in terms of the Section 15 of the Act (supra), with regard to suit house bearing No. 497. Along with the said suit, the respondents had also filed an application for grant of interim relief and the learned trial court initially vide order dated 01.01.2019 directed the parties to maintain status quo qua suit property and also directed the appellants not to create 3rd party interest over the same and vide order impugned, order dated 01.01.2019 was made absolute. 7. Appellants filed their written statement and pleaded that respondents have concealed the material facts from the court that prior to the sale deed dated 03.03.2018, there were two more sale deeds i.e. one dated 12.07.1990 and another dated 04.11.1991 with respect to the same property and as such, the respondents had no right in terms of the Act (supra) because they have not sought declaration with respect to previous sale deeds. It was also stated that there was a common path between the house of respondents and the suit property, as such, the respondents had no right under the Act (supra). Appellants also denied the right of respondents to file the suit on the ground that one Bindu Gondi had already filed suit for permanent prohibitory injunction against the appellant No. 1 in which he had stated that he was the owner in possession of the house bearing No. 496 and house No. 497 was adjacent to it and the said suit was filed on the basis of memorandum of family settlement. It was also pleaded that family of appellant No. 2 had been residing in the suit property at the time of execution of sale deed dated 04.11.1991 and the appellant No. 1 acknowledged the tenancy of the appellant No. 2 and during the year 2018 executed the sale deed dated 03.03.2018 in favour of appellant No. 2. It was also stated that prior to sale deed dated 03.03.2018, two sale deeds dated 12.07.1990 and 04.11.1991 with respect to the suit property were executed. First sale deed was executed on 12.07.1990 between Shri Chaman Lal S/o Shri Hira Lal and Shri Rajinder Kumar S/o Shri Shambhu Nath and thereafter another sale deed dated 04.11.1991 was executed between the above said Rajinder Kumar and appellant No. 1 and thereafter the appellant No. 1 became owner of the suit property and acknowledged the tenancy of the family of appellant No. 2 along with appellant No. 2, as the forefathers of the husband of the appellant No.2 had been residing in the suit property since 1966. Rather the father of respondents purchased the house No. 496 on 05.06.1986 and during that period, the respondents did not seek declaration with respect to the above said two sale deeds. It was also pleaded by the appellants that the appellant No. 2 being the owner had started construction over the said house after obtaining the necessary permissions from concerned authorities but the respondents by misleading the court obtained ex-parte interim order from the learned trial court and under the garb of the said order, stopped the construction of the house of appellant No. 2 and thereby subjecting appellant No. 2 to huge monetarily loss as the appellant No. 2 had been paying rent of iron shuttering. 8. 8. In an application for grant of interim relief, two reliefs were sought by the respondents i.e. the appellants be restrained from raising any sort of construction over the suit house and further they be directed not to create third party interest in any manner what so ever. 9. A perusal of the order impugned reveals that the learned trial court while considering the issue with regard to the prima facie case, has conducted a mini trial and has returned a finding upon the merits of the case and has rejected the contentions of the appellants raised in the written statement, one by one. Law is well settled that while deciding an application for grant interim relief, the trial court is not required to conduct a mini trial. The Apex Court in Anand Prasad Aggarwala v. Tarkeshwar Prasad reported in (2001) 4 SCC 149 has held that that it may not be appropriate for any court to conduct mini trial at the stage of grant of temporary injunction. The trial court has to consider the claims of both the parties so as to arrive at a conclusion whether there are serious issues those require trial or not and the trial court is not supposed to return findings on the merits of the case. A perusal of the order reveals that the learned trial court in para 20 of the order impugned has returned a finding upon the merits of the contention of the appellants that the respondents have not come to the court with clean hands because they concealed the factum of earlier two sale deeds executed on12.07.1990 and 04.11.1991 by stating that the appellants have not been able to point out that even at the time of execution of the earlier sale deeds, which were executed on 12.07.1990 and 04.11.1991, notice as required was given to the respondents. But the trial court has returned this finding oblivious to the fact that at the time when the above mentioned sale deeds were executed in 1990 and 1991, the respondents were not the owners of the House No. 496 as they have claimed to have stepped into the shoes of their father only after his demise on 12.01.2008. This finding was uncalled for at this stage when the court was considering the application for grant of interim relief. This finding was uncalled for at this stage when the court was considering the application for grant of interim relief. The Hon’ble Apex Court while examining the right of pre-emption in Raghunath (D) by Lrs. v. Radha Mohan (d) Thr. Lrs. & ors reported in AIR Online 2020 SC 782 has observed that the right is a “very weak right” and is, thus, capable of being defeated by all legitimate methods including the claim of superior or equal right. The specific case of the appellants was that there is no common outer entrance but a passage and even report of Commissioner is not very clear because there are common entrance and pathway as well. The contention of the appellants that the Municipal Authorities have laid sewerage and tiles cannot be considered in this appeal because no such pleading has been made in the written statement by the appellants. Though the appellants have filed application for amendment of the written statement to incorporate other pleas including that the passage is being maintained by Municipal Corporation but the same was required to be filed before trial court and as such the same cannot be considered by this court. This court is only concerned with the legality of the order impugned passed in application for grant of interim relief. Be that as it may, it is not the case where the appellants have no defence at all as the appellants have raised certain defences to the right of prior purchase projected by the respondents in the suit. This Court has no doubt that there are serious issues those require trial but the learned trial court should have stopped there only and not proceeded further to determine the merits of the claims of both the parties. The Apex Court in Babu Lal Vs. Vijay Solvex reported in (2014) 16 SCC 680 has observed that “However, we are of the opinion that while dealing with a matter relating to vacation of order of temporary injunction, it was not open for the High Court to give a finding on the main issue relating to maintainability of the suit and the family settlement reached between the parties.” 10. So far as issue of balance of convenience is concerned, the learned trial court has observed that the right of the respondents to exert their right of prior purchase to purchase the suit house in the same nature would be defeated. This reasoning cannot be considered as a valid reason particularly when the house is kacha as is evident from the sale deed itself and later on pulled down. While examining balance of convenience, the comparative mischief/inconvenience of the parties is required to be weighed and not the desire of the party to purchase the property in a particular position. The appellant No. 2 admittedly has purchased the suit property and also obtained the permission from the Municipal Authorities, so being the owner in possession of the property, she cannot be deprived of his right to use the said property in the manner she likes till the right as alleged by the respondents is established after trial. From the record, it is evident that the appellant No. 2 after obtaining permission from the Jammu Municipal Corporation for raising the construction of the house, had even placed the shuttering also, that was subsequently removed after the permission of this Court. So far as the present suit is concerned, this in fact the suit for enforcement of right of prior purchase and it is not that the sale deed is absolute nullity, that does not confer any right upon the appellant No.2. Rather in the event the suit is decreed, the respondents would be substituted as vendees in the sale deed and possession would be handed over to them. In Seema Arshad Zaheer v. Municipal Corpn. of Greater Mumbai, (2006) 5 SCC 282 , the Apex Court has held as under: “30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff’s rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff’s rights is compared with or weighed against the need for protection of the defendant’s rights or likely infringement of the defendant’s rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff’s conduct is free from blame and he approaches the court with clean hands.” 11. In Kishorsinh Ratansinh Jadeja v. Maruti Corpn, (2009) 11 SCC 229 , the Apex Court observed: “40. On the other hand, if the owners of the property remain restrained from developing the same, it is they who will suffer severe prejudice, as they will be deprived of the benefit of the user of their land during the said period. The balance of convenience and inconvenience is against the grant of such an injunction. The success of the suit for specific performance filed by Respondent 1 depends to a large extent on tenuous proof of genuineness of the agreement sought to be enforced after 19 years, despite the finding of the trial court that the suit was not barred by limitation.” 12. Similarly, it cannot be said that irreparable injury shall be caused to the respondents if the injunction against the construction is refused as the respondents can either retain the construction or the appellant No. 2 can be directed to pull down the construction raised by her. In ECE Industries Ltd. (2) v. S. P. Real Estate Developers (P) Ltd., (2009) 12 SCC 776 , the Apex Court has observed as under: “27. If ultimately, the suit filed by the appellant-plaintiff is decreed, he can be compensated in damages or the respondent-defendants may be directed to pull down the construction and deliver vacant possession to the appellant-plaintiff when no equity can be claimed for such construction by the respondent-defendants.” 13. So far as interim relief sought by the petitioners with regard to the creation of third party interest is concerned, all three conditions i.e. prima facie case, balance of convenience and irreparable loss exists in favour of the respondents but so far as interim relief with regard to the raising of construction over the suit property is concerned, the balance of convenience does not lie in favour of the respondents but in favour of the appellant No. 2 as on date of filing of the suit, the ownership as well as possession of the suit property is borne from record. The judgment relied upon by learned counsel for the respondents in Maharwal Khewaji Trust (Regd), Faridkote v. Baldev Das, 2004 0 Supreme (SC) 1331 is not applicable in the present facts and circumstances of the case as this Court has come to the conclusion that the balance of convenience does not lie in favour of the respondents and also the respondents shall not suffer irreparable injury in the event of refusal of injunction against construction. It is settled that all three essential requirements i.e. prima facie case, balance of convenience and irreparable injury must co-exist and then only interim injunction can be granted. Merely having a prima facie case is not enough for grant of interim injunction. 14. In view of all what has been discussed above, the order 28.02.2019 passed by the trial court confirming its earlier order dated 01.01.2019, to the extent of restraining the appellants from creating third party interest till the disposal of the suit is upheld whereas the order of status quo is modified to the extent that appellant No. 2 is permitted to raise construction over the suit property in accordance with the permission accorded by the Municipal Authorities provided the appellant No. 2 furnishes an undertaking before the Learned trial court that in the event the suit is decreed, she will not claim any compensation for the construction raised upon the suit property or she will demolish the construction raised by her at her own expenses, in the event, the respondents do not want to retain the construction to be raised on the suit property and further that she will not claim equity in her favour upon such construction. 15. The appeal is, accordingly, partly allowed. 16. The contempt petition shall also stand disposed of.