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2023 DIGILAW 1207 (RAJ)

Gurvinder Singh v. Shelender Godara

2023-05-30

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT 1. This writ petition under Article 227 of the Constitution of India has been preferred claiming the following reliefs: "It is, therefore, most respectfully prayed that the writ petition of the petitioner may kindly be allowed with costs and the impugned order passed Addl. District Judge, Sangria, District Hanumangarh on 31/10/2022 Annexure-5 by which the application of the petitioner under order 39 rule 1 and 2 C.P.C. has been dismissed may be quashed and set-aside and the order dated 24/05/2022 (Ann.3) passed by the learned trial court may be restored and the respondent restrained form maintain status-quo in relation to and not interfere in the peaceful possession of the petitioner over the Land in question. by the exercise of certiorari writ jurisdiction / the Supervisory jurisdiction of this court under Article 227 of the Constitution of India. Any other appropriate order which may be found favourable to the petitioner may also be passed." 2. Brief facts of the case, as placed before this Court by learned counsel for the petitioners, are that the petitioners instituted a suit for declaration of the sale deeds dated 09.04.2010 & 24.05.2010 as null and void, as well as sought permanent injunction, regarding the disputed land in question, against the respondents, before the learned Civil Judge, Sangria, District Hanumangarh. 2.1. Alongwith the said suit, the petitioners have also filed an application under Order 39 Rule 1 & 2 CPC before the learned Trial Court, in regard to the land in question. The learned Trial Court, after the hearing the parties, vide order dated 24.05.2022, allowed the said application and restrained the respondents from raising any construction over the land in question and transferring the same in favour of a third party. 2.2. The respondent no.1, against the said order dated 24.05.2022, preferred an appeal before the learned Additional District Judge, Sangria, Hanumangarh. The learned Appellate Court vide the impugned order dated 31.10.2022, allowed the said appeal, while quashing and setting aside the aforesaid order dated 24.05.2022, thereby reversing the findings arrived at by the learned Trial Court in its order dated 24.05.2022. 2.3. Thus, being aggrieved by the impugned order dated 31.10.2022 passed by the learned Appellate Court, the petitioners have preferred this writ petition claiming the afore-quoted reliefs. 3. 2.3. Thus, being aggrieved by the impugned order dated 31.10.2022 passed by the learned Appellate Court, the petitioners have preferred this writ petition claiming the afore-quoted reliefs. 3. Learned counsel for the petitioners submitted that there is a clear prima facie case in favour of the present petitioners, and that, while passing the impugned order, the learned Appellate Court has completely misconstrued the documents placed on record before it. 3.1. Learned counsel further submitted that Jeet Singh was the grandfather of the petitioners, and after his death, the ancestral property was divided among the petitioners and the respondent no.2; whereafter, the respondent no.2 sold the property, in excess of his entitlement/share therein, to one Madan Singh (vide sale deed dated 09.04.2010) and the respondent no.1 (vide sale deed dated 24.05.2010). Therefore, as per learned counsel, the learned Trial Court has rightly allowed the application under Order 39 Rules 1 & 2 CPC preferred by the petitioners, but the impugned order was passed by the learned Appellate Court without considering the fact that the petitioners have clearly made out a prima facie case in their favour. 4. On the Other hand, learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioners, submitted that after purchase, the land was mutated in the name of respondent no.1 and Madan Singh. It was thus submitted that since after purchase, the respondent no.1 is in possession of the land in question, therefore, no prima facie is made out in favour of the petitioners. 4.1. Learned counsel further submitted that the petitioners completely failed to prove that their case falls within the parameters for temporary injunction, because the respondent no.1 has been in physical possession of the land in question, after the same was sold by respondent no.2. 4.2. Learned counsel also submitted that the main contention of the petitioners is that the land in question is an ancestral property, but merely the same cannot establish any prima facie case in favour of the petitioners, in the given factual matrix; therefore, the learned Appellate Court has rightly passed the impugned order. 5. Heard learned counsel for the parties as well as perused the record of the case along. 6. 5. Heard learned counsel for the parties as well as perused the record of the case along. 6. This Court observes that the petitioners instituted the aforementioned suit for declaring the two sale deeds as null and void as well as sought permanent injunction against the respondents; alongwith the said suit, the petitioners have also filed an application under Order 39 Rules 1 & 2 CPC before learned Trial Court, which was allowed vide order dated 24.05.2022, as mentioned above. Thereafter, the respondent no.1 filed an appeal before the learned Appellate Court, which was allowed vide the impugned order dated 31.10.2022, while quashing and setting aside the order dated 24.05.2022 passed by the learned Trial Court. 7. This Court further observes that the learned Appellate Court recorded that after selling of the property in question vide the aforementioned sale deeds and the mutation entry in that regard, the possession of the respondent no. 1 over the land in question was clearly established, and thus, no prima facie case in favour of the petitioner is made out in the given factual matrix. 8. This Court further observes that there is also no balance of convenience made out in favour of the petitioners; in fact, the injunction order dated 24.05.2022 passed by the learned Trial Court clearly goes contrary to the parameters of such injunction, and thus, if the same is sustained, it would result into an irreparable loss to the respondent, in regard to the land in question. 9. This Court therefore, observes that the learned Appellate Court has passed the impugned order, after duly considering overall facts and circumstances of the case, as also considering whether the grounds raised by the petitioners for seeking injunction falls within the parameters of such injunction. 10. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioners in the present petition. 11. Consequently, the present petition is dismissed. All pending applications stand disposed of.