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2023 DIGILAW 1753 (RAJ)

Jagdish v. Girdhari Lal Sharma

2023-09-13

NAKENDRA SINGH DHADDHA

body2023
JUDGMENT : NAKENDRA SINGH DHADDHA, J.:— Instant appeal has been filed by the appellant- non-applicant (for short ‘the non-applicant’) against the order dated 29.04.2023 passed by Additional District Judge No. 4, Jaipur District, Jaipur in Civil Misc. Case No. 16/2019 (49/2018, 80/2018), whereby the temporary injunction filed by the respondent No. 1-applicant (for short ‘the applicant’) has been allowed. 2. Learned senior counsel for the non-applicant submits that the trial court wrongly allowed the temporary injunction application filed by the applicant. Learned senior counsel for the non-applicant also submits that disputed property was purchased in the name of Shyola on account of eldest son of the family. That property was purchased from joint Hindu family income and not from personal income of Shyola. Learned senior counsel for the non-applicant also submits that three sons of the Ladu Ram had executed the partition deed dated 11.10.1980 in which they clearly stated that the disputed property was joint Hindu family property. They filed a suit for partition before the Revenue Court. Revenue Court passed the decree on 03.06.1995. The said decree was challenged before the Revenue Appellate Authority and Revenue Appellate Authority remanded the matter to Sub Divisional Officer, Amer to decide the matter afresh vide order dated 13.11.1996. After that, SDO, Amer passed the decree on 22.02.2001. The said decree was also challenged before the Revenue Appellate Authority. Revenue Appellate Authority dismissed the appeal on 30.8.2005. Order dated 30.8.2005 passed by Revenue Appellate Authority was further challenged before the Board of Revenue and the said appeal was also dismissed on 19.03.2020. The said order was not challenged before High Court. Learned senior counsel for the non-applicant, also submits that the trial court while deciding the prima facie case wrongly came to the conclusion that questions whether the said partition deed was valid or not and being unregistered is admissible in evidence or not and whether disputed property was purchased by Shyola from his personal income or not, would be decided after taking the evidence. 3. Learned senior counsel for the non-applicant also submits that Shyola himself admitted this fact in the partition deed as well as before the Revenue Court that disputed property was joint Hindu family property. 4. Learned senior counsel for the non-applicant also submits that Kanhaiyalal father of applicant had not challenged the said order. 3. Learned senior counsel for the non-applicant also submits that Shyola himself admitted this fact in the partition deed as well as before the Revenue Court that disputed property was joint Hindu family property. 4. Learned senior counsel for the non-applicant also submits that Kanhaiyalal father of applicant had not challenged the said order. Learned senior counsel for the non-applicant also submits that 10 Bigha land was acquired by National Highway Authority out of disputed land for which compensation was awarded and compensation was received by three sons of Ladu Ram in equal shares. 5. Learned senior counsel for the non-applicant also submits that three sons of Shyola had sold their share of land to Vijaypura Grah Nirman Sahkari Samiti considering the fact that Shyola had 1/3rd share in the disputed land. Learned senior counsel for the non-applicant also submits that applicant also got the electricity connection in their Godown by submitting Jamabandi in the year 2016. 6. Learned senior counsel for the non-applicant also submits that disputed land was partitioned 38 years ago. Instead of challenging the order of the Revenue Board, applicant challenged the decree dated 22.02.2001 passed by the SDO on wrong facts. There is no evidence that said decree was obtained by way of fraud or misrepresentation. Learned senior counsel for the non-applicant also submits that suit for partition was also pending before the Additional Collector, Amer regarding same land. Learned senior counsel for the non-applicant also submits that the trial court had not considered these facts while deciding the temporary injunction application. So, order of the trial court be set aside. 7. Learned senior counsel for the non-applicant has placed reliance upon the following judgments : (I) Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 : AIR 1993 SC 276 and (2) Jagdish v. Girdhari Lal Sharma, in S.B. Civil Misc. Appeal No. 447/2022 decided on 07.05.2022. 8. Learned senior counsel for the applicant has opposed the arguments advanced by learned senior counsel for the non-applicant and submitted that the trial court rightly considered the temporary injunction application filed by the applicant because it is an admitted position that disputed land was purchased in the name of Shyola because Shyola had paid sale consideration from his personal income and revenue record also confirmed these facts but due to illiteracy, non-applicants and other hatched a conspiracy and obtained the decree by fraud. Civil Court had jurisdiction to cancel the decree passed by the SDO. Learned senior counsel for the applicant also submitted that whether decree obtained by fraud and so-called partition deed is valid or not, are triable issues. So, the trial court rightly ordered to maintain status quo over the disputed property. So, appeal be dismissed. 9. Learned senior counsel for the applicant has placed reliance upon the following judgments : (1) Roshan Singh v. in Zile Singh, (2018) 14 SCC 814 : AIR 1988 SC 881 ; (2) Horil v. Keshav, (2012) 2 CDR 386 (SC); (3) Kera Ram v. Mohan Lal, in S.B. Civil Misc. Appeal No. 1291/2009 decided on 14.10.2009; (4) Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass, in Civil Appeal No. 6792/2004 decided on 15.10.2004; (5) Gujarat Bottling Co. Ltd. v. Coca Cola Company, in Civil Apepals Nos. 6839-6840 of 1995 decided on 04.08.1995; (6) Rudresh Jhunjhunwala v. Satish Kumar, in S.B. Civil Misc. Appeal No. 136/2022 decided on 03.02.2022 and (7) Bombay Plaster Industries v. Jagdamba Plaster, in S.B. Civil Misc. Appeal Nos. 1097 and 1096 of 2017 decided on 03.01.2018. 10. I have considered the arguments advanced by learned senior counsel for the non-applicant as well as learned senior counsel for the applicant. 11. It is an admitted position that disputed land was in the name of Shyola but as per the averments of the non-applicant, this land was purchased from joint Hindu family income in the name of Shyola because Shyola was the eldest son of the family. So, it was joint Hindu family property. Settlement was arrived and a partition deed was executed on 11.10.1980. On account of partition deed, revenue suit was filed and said Revenue suit was decreed ex-parte on 03.06.1995. The said decree was challenged before the Revenue Appellate Authority and Revenue Appellate Authority remanded the matter on 13.11.1996 to decide the matter afresh. After that, SDO, Amer passed the decree on 22.02.2001 after taking evidence of the parties. The said decree was challenged before the Revenue Appellate Authority and Revenue Appellate Authority dismissed the appeal on 30.08.2005. Order dated 30.08.2005 of the Revenue Appellate Authority was further challenged before Board of Revenue and Board of Revenue dismissed the appeal on 19.03.2020. The said order was not challenged before High Court. Applicant had challenged the decree passed by the Revenue Court after 38 years. Order dated 30.08.2005 of the Revenue Appellate Authority was further challenged before Board of Revenue and Board of Revenue dismissed the appeal on 19.03.2020. The said order was not challenged before High Court. Applicant had challenged the decree passed by the Revenue Court after 38 years. Father of applicant is alive and he had not challenged the said order. Partition suit regarding this land is also pending before the Additional Collector, Amer. Instead of challenging the order of Board of Revenue, applicant had challenged the decree dated 22.02.2001 passed by the Additional Collector, Amer. 10 Bigha land out of disputed land was acquired by the National Highway Authority in which sons of Ladu Ram had accepted the compensation by considering their l/3rd share of land. Three sons of Shyola- Mohan lal, Shriram, Sharvanlal had sold their land to Vijaypura Grah Nirman Sahakari Samiti Limited by assuming the fact that their father had l/3rd share in the disputed land. Applicant had taken electricity connection in his Godown by submitting the Jamabandi of this land. The trial court had not considered these facts. So, in my considered opinion, the trial court wrongly passed the order to maintain status quo over the disputed land. So, order of the trial court deserves to be set aside. The appeal filed by the non-applicant is allowed. The order of the trial court dated 29.04.2023 is set aside.