This court dismissed a petition under Article 227 challenging the refusal to grant temporary injunction. The court held that registered sale deeds and lack of partition case preclude injunction, relying on lis pendens.
Temporary injunction against further alienation dismissed; petition under Article 227 dismissed.
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Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 4833 of 2019
Petitioner :- Nand Lal And Another Respondent :- Govind Lal And 4 Others Counsel for Petitioner :- Ganga Prasad Gupta Counsel for Respondent :- Dhirendra Kumar Srivastava
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the order dated 2.8.2018, whereby the trial court has declined to grant temporary injunction in favour of the plaintiff-petitioners in Original Suit No.92 of 2016 as well as the order dated 13.3.2019 passed by District Judge in Misc. Appeal No.23 of 2018 dismissing the same.
The plaintiffs brought the suit in question claiming that the suit property is co-parcenary property. They also sought cancellation of sale deed executed by defendant no.3, their mohter in favour of defendants no.4 and 5 in respect of certain part of the suit property. The claim of the petitioners was contested by the defendant-respondents by taking a specific plea that the property, in respect of which sale deed was executed by defendant no.3, was her self-acquired property from her Stridhan and was also duly recorded in the revenue records in her exclusive name. After the execution of the sale deed, she transferred possession thereof to defendants no.4 and 5 and their names also came to be mutated in the revenue records. It was also specifically pleaded that the suit in question is barred by Section 331 of the U.P.Z.A. & L.R. Act.
The trial court has held that even according to the admitted case in the plaint, the suit property is agricultural in character. Consequently, the trial court held that the concept of co-parcenary would not apply but succession would take place in accordance with the provisions of the U.P. Z.A. & L.R. Act. The trial court also held that in respect of Arazi Nos. 243, 367, 213
and 56, name of defendant no.3 was duly recorded as bhumidhar. In respect of other land, name of plaintiffs is recorded jointly alongwith the other defendants as bhumidhar. There is no partition by metes and bounds and as such, the plaintiffs are not entitled to injunction against joint tenure holders even in respect of the remaining property. The appellate court has concurred with the findings recorded by the trial court. It has further observed that without bringing a suit for partition, the petitioners cannot sue for mere injunction.
Learned counsel for the petitioners submitted that a number of sale deeds had been executed by defendant no.3 in favour of different persons. He submitted that in such circumstances, injunction should be granted restraining further alienations.
Counsel for the petitioner has placed reliance on paragraph 29 of the judgement of the Supreme Court in Binapani Paul Vs. Pratima Ghosh, 2007 Law Suit (SC) 509 , wherein a passage from an earlier judgement in Jaydayal Poddar (deceased) through L.Rs. and another Vs. Mst. Bibi Hazira and others, 1974 (1) SCC 3 has been quoted, which is as follows:-
“ The essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2)the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami
colour; (4) the position of the parties and the relationship, it any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale."
It is not in dispute that the suit property is agricultural in character inasmuch as the court fee has also been paid on basis of land revenue. The concept of co-parcenary is not applicable to agricultural holding. The concurrent findings recorded by the courts below is that in respect of land of which sale deed was executed by defendant no.3, it was recorded exclusively in her name. The question as to whether defendant no.3 was benami owner or whether such a plea would be hit by the Benami Prohibition Act, would be decided after evidence is led by the parties, but at this stage, in view of there being a registered sale deed in favour of defendants no.4 and 5, which has yet not been cancelled by any competent court, it cannot be said that there is any defect in their title.
As far as the prayer made by the counsel for the petitioners for restraining further alienation, this Court is of the opinion that the doctrine of lis pendens takes care of the same and having regard to the entire facts, the petitioners have failed to make out any case for grant of such an injunction.
The petition is accordingly dismissed.
(Manoj Kumar Gupta, J)
Order Date :- 2.8.2019 SL
2 issues framed by the court
Whether a temporary injunction can be granted against further alienation of agricultural property during pendency of suit regarding benami transaction.
Whether doctrine of lis pendens satisfies the requirement to restrain further alienation without specific case for injunction.
Colour shows how this judgement treated each authority
Binapani Paul Vs. Pratima GhoshReferred¶10
Binapani Paul Vs. Pratima Ghosh, 2007 Law Suit (SC) 509
Jaydayal Poddar (deceased) through L.Rs. and another Vs. Mst. Bibi Hazira and othersReferred¶10
Jaydayal Poddar (deceased) through L.Rs. and another Vs. Mst. Bibi Hazira and others, 1974 (1) SCC 3 · Who else cites this
2 provisions across 2 enactments
Nand Lal
Government of Uttar Pradesh (represented by Govind Lal)
Manoj Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
