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2023 DIGILAW 2249 (RAJ)

Vinod Kumar v. Maniram

2023-12-14

NUPUR BHATI

body2023
ORDER : (Nupur Bhati, J.) The instant writ petition has been preferred by the petitioner under Article 227 of the Constitution of India with the following prayers:- "that the writ petition of the petitioner may kindly be allowed with costs and the impugned Order passed by learned Addl. District Judge, Sadulshahar, District Sri. Ganganagar on 03/08/2023 (Annexure-5) as well as the order dated 26/05/2023 (Annexure-4) passed by learned Addl. Chief Judicial Magistrate, Sadulshahar may kindly be quashed and set-aside and application under Order 39 Rule 1 & 2 read with Sec. 151 C.P.C. filed by the petitioner in Civil Misc. Case No. 16/2019 Vinod Kumar v. Maniram & Anr. may kindly be allowed as prayed." 2. Brief facts of the case are that the plaintiff-petitioner filed a suit (Annexure-1) for permanent injunction against the defendant respondents before learned Civil Judge, Sadulshahar. The plaintiff-petitioner also filed an application under Order 39 Rule 1 & 2 read with section 151 of C.P.C. for temporary injunction while praying that till final disposal of the suit, the respondents Maniram S/o Shri. Sahiram and Saroj W/o Shri. Maniram may be restrained from interfering in the land in dispute in possession of petitioner-Vinod Kumar, Prithviraj and Sahebram situated at Tehsil Sadulshahar's Chak No. 39MM of Khata No. 66/5813 Bigha, 4 Bigha in Khata No. 65/56 and 1.467 Hectare Nahri in the same Chak Khata No. 54/46 and 4.680 Hectare in Chak No. 40 MM Khata No. 97/95 Nahri total chaks had 10.157 hectares of canal land, District Sri. Ganganagar mentioned in the Will dated 08.05.2001 and also maintain status of the record as it is. 3. The learned trial court vide Order dated 26.05.2023 (Annexure-4) after hearing the arguments of counsel for the parties, dismissed the application under Order 39 Rule 1 & 2 read with section 151 of C.P.C. filed by the plaintiff. 4. The petitioner being aggrieved and dissatisfied by the order passed by the learned Trial Court on 26.05.2023 (Annexure-4) preferred an appeal before the Additional District Judge, Sadulshahar, District Sri. Ganganagar which was dismissed and the order dated 26.05.2023 was affirmed vide Order dated 03.08.2023. (Annexure-5.) 5. 4. The petitioner being aggrieved and dissatisfied by the order passed by the learned Trial Court on 26.05.2023 (Annexure-4) preferred an appeal before the Additional District Judge, Sadulshahar, District Sri. Ganganagar which was dismissed and the order dated 26.05.2023 was affirmed vide Order dated 03.08.2023. (Annexure-5.) 5. Being aggrieved and dissatisfied by the Order passed by the learned Appellate Court on 03.08.2023 (Annexure-5) affirming the Order dated 26.05.2023 (Annexure-4) passed by the learned trial court by which the application under Order 39 Rule 1 & 2 read with Sec. 151 of C.P.C. of the plaintiff for temporary injunction has been dismissed, the petitioner has preferred the present writ petition. 6. Learned Counsel for the petitioner submits that the learned Appellate Court as well as the learned Trial Court have committed a grave legal error in dismissing the application for temporary injunction only on the ground that the plaintiff or his father have not proceeded for mutation on the basis of 'Will' dated 08.05.2001 which has came into force w.e.f. 23.12.2007 after the death of Sahiram. He further submits that to decide the application under Order 39 Rule 1 & 2 read with Sec. 151 of C.P.C., the learned trial court was only required to consider whether prima facie, the plaintiff is entitled to status-quo on the basis of Will dated 08.05.2001 executed by his grandfather late Sahi Ram in favour of his father Brijlal, Prithviraj and Sahabram and the prima facie question of mutation in revenue record was not required to be decided at this stage. 7. Learned counsel for the petitioner further submits that the possession of the disputed property is not with the respondents, the possession of the same is with the petitioner, Prithviraj and Sahabram and the learned trial court has ignored the documents submitted by the petitioner regarding the possession as an evidence, viz-a-viz the letter dated 25.04.2017 of Water Consumers Association BK 44, receipts for payment of irrigation tax by the petitioner. 8. 8. Learned counsel for the petitioner also submits that both the learned courts below, did not consider the evidence produced by the petitioner regarding possession of the disputed land and during the trial in the court of Sub-Divisional Officer, Sadulshahr, the gift deed of the disputed land which was executed by respondent No. 1 in favour of respondent No. 2., the suit filed for declaring the gift deed null and void which is pending consideration before learned trial Court. 9. Heard learned counsel for the petitioner. 10. This Court, finds that the Appellate Court after perusing the record available before it has observed that it is accepted that in Khata No. 54, 65 and 66 of Chak-39 MM of Tehsil Sadulshahar and in Khata No.97/95 of Chak-40MM a total of 10.157 hectares of land was registered in the name of the petitioner's grandfather Sahi Ram. The Appellate Court also observed that Sahi Ram died on 23.12.2007 and this fact cannot be denied that after the death of Sahi Ram, the inheritance of the disputed property was registered in the name of the heir of Sahiram on 09.05.2013. The Appellate Court also found that Sahiram's heir Maniram transferred his 1/5th share in the disputed agricultural land through a gift deed in the name of respondent No.2- Saroj W/o Maniram on 19.07.2016. 11. The petitioner before the Court below pleaded that during his lifetime, Sahiram Willed the disputed agricultural land in the name of Prithviraj, Brijlal and Sahebram on 08.05.2001 and the respondents in their pleadings have stated that the said 'Will' is completely fake and forged. The Appellate Court below observed that upon perusal of the records it is undisputed fact that the deed of inheritance of the affected land was registered in the name of Sahiram's heir in the year 2013 and the so called 'Will' is stated to be of 08.05.2001 and further the death of Sahi Ram is said to be on 23.12.2007. The Appellate Court has also observed that the question is when Sahiram died on 23.12.2007 and 'Will' came into effect then why the petitioner based on the said 'Will' did not file any application for mutation. The Appellate Court has also observed that the question is when Sahiram died on 23.12.2007 and 'Will' came into effect then why the petitioner based on the said 'Will' did not file any application for mutation. The Appellate Court has also observed that when the inheritance passed in the name of Sahiram's heir that time also the applicant-petitioner did not produce the said 'Will' and this fact has come on record that the heir's of Sahi Ram are in the possession of the disputed property in their respective rights and shares. 12. This Court, finds that the Appellate Court has categorically held that there is neither any pleading nor any evidence that the applicant-petitioner is having the possession of the disputed land on the basis of the said 'Will' and further in the pleadings the applicant-petitioner has also not stated the area of the land of which he is in possession of. Thus, this Court finds that the Appellate Court while considering each and every aspect in the matter and after due examination of the record held that the petitioner-applicant has failed to show before the Courts below that the petitioner-applicant is having the possessions of the disputed land on the basis of the 'Will' as well as the said fact is also missing in the pleadings taken by the applicant-petitioner and thus, no interference is called for in the impugned order dated 26.05.2023 (Annexure-4) passed by learned Addl. Chief Judicial Magistrate, Sadulshahar and order dated 03.08.2023 (Annexure- 5) passed by learned Addl. District Judge, Sadulshahar, District Sri. Ganganagar. 13. Accordingly, the writ petition is dismissed being bereft of merit. Stay petition and all pending applications, if any, stand dismissed.