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2023 DIGILAW 1681 (RAJ)

Magan S/o. Ramji Patel v. Ramji S/o. Daya Patel

2023-09-06

MADAN GOPAL VYAS

body2023
JUDGMENT : The present civil misc. appeal under Order 43 Rule 1(r) read with Section 104 of the Code of Civil Procedure has been filed by the plaintiff-appellant against the order dated 11.8.2021 passed by the learned Addl. District Judge No.4, Udaipur in Civil Misc. Case No.10/2021 (CIS No.59/2021) whereby the learned trial court rejected the application filed by the plaintiff-appellant under Order 39 Rule 1 and 2 read with Section 151 of the CPC seeking temporary injunction. 2. Brief facts giving rise to the present appeal are that the appellant-plaintiff claims that agricultural land bearing Aaraji number 889 and 1547 admeasuring 2.5300 hectares situated in revenue village Ambasa, Tehsil Jhadol (Phalasiya), District Udaipur was purchased in the name of respondent no. 1 as a joint family property in which the plaintiff-appellant contributed money. A family settlement took place and land bearing Aaraji number 889 admeasuring 1.2800 hectares was kept for the appellant. Subsequently, a family partition took place in which the land bearing Araji no. 889 admeasuring 1.2800 hectares and a house built thereupon came under the appellant’s share. However, the respondent no. 1 sold the said land to respondent nos. 2 and 3. The plaintiff-appellant preferred a suit for cancellation of sale deed and grant of perpetual injunction along with an application for temporary injunction restraining the respondents-defendants from alienating/transferring the suit property and maintaining the status quo. 3. Learned counsel for the plaintiff-appellant submits that the appellant is the son of the respondent no.1 and was residing at Kuwait at the time of purchase of the agricultural land bearing Aaraji Nos.889 and 1547 ad measuring 2.5300 hectares at revenue village Ambasa, Tehsil Jhadol (Phalasiya), District Udaipur. The property was purchased in the name of respondent no. 1 as a joint family property for which the appellant has also contributed an initial sum of Rs.2,00,000/-. Thereafter, from time to time, the appellant sent money to respondent no. 1 on demand from Kuwait for construction of house upon the said property and for other expenses. Therefore, the property in question is a joint family property in which the plaintiff-appellant has a share. Thereafter, from time to time, the appellant sent money to respondent no. 1 on demand from Kuwait for construction of house upon the said property and for other expenses. Therefore, the property in question is a joint family property in which the plaintiff-appellant has a share. A dispute arose between the appellant and the respondent no.1 with respect to the suit property, which was settled on intervention of the eminent persons of the community and on 05.12.2010, a family partition took place in which the plaintiff-appellant was given possession of land bearing Aaraji No.889 ad measuring 1.2800 hectares alongwith a house constructed thereupon. The plaintiff-appellant is in possession of the suit property. Therefore, it is submitted that the trial Court has committed error in not finding any prima facie case in favor of the appellant-plaintiff. 4. Learned counsel for the appellant-plaintiff also submitted that on 1.12.2020, the appellant came to know that the respondent no.1 has executed a sale deed with respect to the entire suit property in favor of defendants-respondents nos.2 and 3, which is prima facie unlawful as the suit property is not a self-acquired property of the respondent no. 1. It is submitted that such an act would cause irreparable loss to the plaintiff-appellant as he would be precluded from enjoying his rights with respect to his share of the property. Therefore, the balance of convenience also lies in favor of the plaintiff-respondent and the trial Court committed grave illegality in rejecting the application for temporary injunction filed by the plaintiff-appellant. In support of his contentions, learned counsel for the appellant relied upon the judgment of the Hon’ble Supreme Court delivered in the case of Ram Singh & Ors. Vs. Col. Ram Singh reported in AIR 1986 SC 3 . 5. Per contra, learned counsel appearing for the defendants-respondents submits that the property in question is not the joint family property and the same is a self-acquired property of the defendant-respondent no.1. It is submitted that the appellant was living separately and was in Kuwait when the suit property was purchased and he has not contributed for purchase of the suit property. It is further submitted that there was neither any family settlement nor any family partition of the said property. It is submitted that the appellant was living separately and was in Kuwait when the suit property was purchased and he has not contributed for purchase of the suit property. It is further submitted that there was neither any family settlement nor any family partition of the said property. The defendant-respondent no.1 being the owner of the suit property, in his prerogative, has rightly executed the sale deed in favor of the defendants nos.2 and 3. Learned counsel further submits that the plaintiff-appellant is not in possession of the suit property. Thus, the learned trial court while taking into consideration all the facts and circumstances of the case, has rightly rejected the application seeking temporary injunction. In support of his contentions, learned counsel for the respondents relied upon the following judgments : i. Premji Ratansey Shah & Ors. Vs. Union of India & Ors reported in (1995) 0 AIR (SCW) 2425. ii. Bhoomireddy Chenna Reddy & Anr. Vs. Bhoospalli Pedda Verrappa (Dead) by LRs & Anr. Reported in (1997) 0 AIR (SC) 2311. iii. Raghunathdas Vaishnav Vs. Municipal Board, Nathdwara through the Commissioner, Municipal Council, Nathdwara reported in 2019 (2) DNJ 725 . iv. Mohan Lal Vs. Jai Singh reported in 2018 (1) WLC (Raj) (UC) 26. 6. Heard the learned counsel for the parties and perused the material available on record as well as the impugned order passed by the learned trial court. 7. It is a settled legal proposition that no injunction can be granted against a true owner. The learned trial court vide impugned order dated 11.8.2021 has elaborately discussed the case of the plaintiff-appellant for grant of temporary injunction and has rejected his application for temporary injunction as the defendant-respondent no.1 is the registered owner of the suit land. 8. This Court in Mohan Lal (supra) in para no.4 held as under:- "4. The trial court vide order dated 6.9.2016 has elaborately discussed the case of the plaintiffs for grant of interim injunction and found against them as the defendants are registered owners of the suit land and in possession. There was thus no prima facie case found in favour of the plaintiffs, nor balance of convenience or any irreparable injury. The appellate court affirmed the said order in the plaintiffs' civil miscellaneous appeal, yet oddly directed for maintaining status quo for vague and unsustainable reasons." 9. There was thus no prima facie case found in favour of the plaintiffs, nor balance of convenience or any irreparable injury. The appellate court affirmed the said order in the plaintiffs' civil miscellaneous appeal, yet oddly directed for maintaining status quo for vague and unsustainable reasons." 9. On the issue of plaintiff-appellant being in possession of the suit property, even if it is assumed that the plaintiff-appellant is in possession, then also his possession is wholly unlawful possession and an injunction cannot be issued in favor of the trespasser and against the true owner. The learned trial Court rightly held that there is no prima facie case found in favor of plaintiff-appellant, nor any balance of convenience lies in his favor or any irreparable loss would be caused to him. 10. In these circumstances, this Court is of the considered view that the order passed by the learned trial Court does not suffer from any illegality and is a speaking order and the same does not call for any interference. 11. Hence, the present civil misc. appeal is hereby dismissed. 12. The stay application also stands disposed of accordingly.