Allowed

Raju and 3 Others v. Mahar Chand and 3 Others

Allahabad HC15 May 2019FAFO/2610/2018

Case brief

AI extract

What is this about?

The court allowed the first appeal against the rejection of an ad interim injunction application. The High Court set aside the lower court's order, allowing the injunction to preserve the status quo until the final disposal of the suit, citing a prima facie case and the disclaimer of irreparable injury to the plaintiffs.

What did the court decide?

Impugned order set aside; application for ad interim injunction allowed; parties restrained from raising constructions or changing possession; maintenance of status quo till suit final disposal.

Raju and 3 Others Vs Mahar Chand and 3 Others — Property and Title | Allahabad HC (2019)

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Court No. - 40

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Case :- FIRST APPEAL FROM ORDER No. - 2610 of 2018 Appellant :- Raju And 3 Others Respondent :- Mahar Chand And 3 Others Counsel for Appellant :- Syed Ali Imam Counsel for Respondent :- Praveen Kumar,Bipin Lal Srivastava,D.K.Sharma,Sudhir Kumar Malviya,Syed Fahim Ahmed,Vinayak Mithal

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Hon'ble Harsh Kumar,J.

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The present first appeal from order has been filed against the judgment and order dated 11.5.2018 passed by Civil Judge (Senior Division), Gautam Budh Nagar, rejecting the application 6-C of plaintiffsappellants for ad interim injunction during pendency of suit.

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The brief facts relating to the case are that plaintiffs-appellants filed Civil Suit No.748 of 2016 against respondent nos.1 to 4 before Civil Judge (Senior Division), Gautam Budh Nagar on 9.10.2016 seeking a decree for permanent injunction, restraining defendants and their agents from interfering in peaceful possession of plaintiffs over land plot Khasra No.319 bounded in East with Bhagmal Complex, West house of Rajendra, North house of Shanker and South house of Jai Ram situated in village Naya Bans, Pargana and Tehsil, Dadri, District Gautam Budh Nagar, by taking forcible possession or interfering in constructions of plaintiffs or by dispossessing them. With filing of suit an application for ad interim injunction was also moved and after filing of written statements as well as objections against application for ad interim injunction by defendants on 20.10.2016, Trial Court disposed of the application for ad interim injunction vide impugned order dated 11.5.2018, rejecting the same. Feeling aggrieved, plaintiffs have preferred this appeal.

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During pendency of appeal “Cordant Private Limited” moved an application for impleadment in the appeal as necessary party stating that property in suit has been purchased by him through registered sale deed dated 16.12.2016. The above application was allowed and “Cordant

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Private Limited” was impleaded as respondent no.5.

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Heard Sri Syed Ali Imam, learned counsel for appellants, Sri Vinayak Mithal, learned counsel for respondent nos.1 to 4, Sri D.K. Sharma and Sri Syed Fahim Ahmad, learned counsel for respondent no.5 and perused the record.

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Learned counsel for appellants contends that father of appellants Sri Chandagi Ram and defendants-respondents no.1 to 4 and one Deep Chand were real brothers being sons of Bhagmal son of Rober Singh; that out of six sons of Bhagmal, Deep Chand died issue-less and intestate and Chandagi Ram died leaving behind him plaintiffs; that the property in suit, is one plot which fell in the share of father of plaintiffs out of 05 plots and one Baithak in the mutual partition between heirs of Bhagmal and the property in South to property in dispute also fell in share of father of plaintiffs; that defendants raised a market with several shops over plots fell in their share and want to take forcible possession over the plot of plaintiffs; that plaintiffs are in actual physical possession over the land in suit; that learned trial court has acted wrongly and illegally in relying on photo copies of alleged unregistered family settlement and agreement, which are not admissible in evidence; that plaintiffs have a strong prima facie case and balance of convenience lies in their favour and in case of non issuance of ad interim injunction, the defendants and their transferee pendente lite (Respondent no.5), will change nature of property in suit by which plaintiffs will suffer irreparably; that defendants have no right, title, interest or possession over the property in suit and by issuance of ad interim injunction, defendants-respondents or their transferee pendente lite are not likely to suffer any loss whatsoever.

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Per contra, learned counsel for defendants-respondents no.1 to 4 as well as newly added respondent no.5 supported the impugned order and contended that defendants-respondents no.1 to 4 by filing written statements and objections with affidavit against application for ad interim

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injunction have denied allegations made in plaint; that a mutual partition of properties of Bhagmal did take place in the year 1967 in the life time of Bhagmal, according to which, house constructed over 150 square yards plot in village Chilla, Delhi and house over 325 square yards residential plot in Patpadganj fell in the share of Chandagi Ram, the father of plaintiffs, while vacant land in village Naya Bans and uneven land with pits, the property in dispute fell in the share of defendants-respondents no.1 to 4 and their brother Deep Chand; that Chandagi Ram lived in village Chilla, Delhi with his children and over the land in question, shops and houses were got constructed by defendants; that later on Deep Chand also died and 05 plots and a Baithak in village Naya Bans, Tehsil Dadri, District Gautam Budh Nagar, which had fallen in share of defendantsrespondents no.1 to 4 and Deep Chand and defendants-respondents no.1 to 4 are in actual physical possession of the property in suit; that defendants-respondents no.1 to 4 have sold the property in question in favour of respondent no.5 during pendency of suit by way of registered sale deed dated 16.12.2016; that ad interim injunction passed by this Court in present appeal vide order dated 31.5.2018 directing parties to maintain status quo, may not be extended beyond the period over 06 months in view of the judgment passed by the Apex Court in the case of Asian Resurfacing of Road Agency Private Limited and others Vs. Central Bureau of Investigation (2018) 16 SCC 299; that since plaintiffs are not in possession over the property in suit, simplicitor suit for injunction is legally not maintainable because consequential relief of possession has not been sought/prayed for in plaint; that plaintiffs have no prima facie case, balance of convenience does not lie in their favour and in case of rejection of application for ad interim injunction, they are not likely to suffer any loss whatsoever, while by issuance of ad interim injection, the defendants-respondents will suffer irreparably as respondent no.5 is raising constructions over the property; that there is no illegality or incorrectness in the impugned order and appeal is liable to be dismissed

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with costs.

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In reply, learned counsel for appellants contended that respondent no.5 is a transferee pendente lite and since alleged sale deed in his favour is hit by principles of lis pendens and provisions of Section 52 of Transfer of Properties Act, 1882, he has no locus standi to claim any rights or title in the property suit and will have to abide by the final decision in suit; that even according to contention of defendants, property in suit, 05 plots and a Baithak allegedly fell in share of defendants-respondents no.1 to 4 and Deep Chand and on death of Deep Chand, appellants also get share in the property in suit as per law of succession and they are undisputedly coowners in possession over the property in suit; that it may not be contended that share of Deep Chand in property in suit devolved only on defendants-respondents no.1 to 4 and not on plaintiffs, even in absence of any Will deed by Deep Chand, deceased, who died issue-less and intestate; that even according to averments made in written statements, plaintiffs-appellants are co-sharers in possession over property in suit and defendants or their vendee, may not be permitted either to interfere in peaceful possession and constructions of plaintiffs over the property in suit or to change the nature of property in suit or to raise constructions thereon; that learned lower court acted wrongly in holding that plaintiffsappellants have no prima facie case or balance of convenience does not lie in their favour.

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Upon hearing parties counsel and perusal of record, I find that undisputedly plaintiffs and defendants-respondents no.1 to 4 are legal heirs of Bhagmal common ancestors of parties. Undisputedly Bhagmal had six sons out of which 04 are defendants-respondents no.1 to 4, one was Chandagi Ram, the father of plaintiffs-appellants and another one was Deep Chand. Undisputedly Deep Chand died intestate and issue-less in the year 1994 or so. Chandagi Ram father of plaintiffs is alleged to have executed agreement at Annexure No.2 to the impleadment application of respondent no.5 on 28.7.2001. The property in suit

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admittedly belonged to Bhagmal the common ancestor of plaintiffs and defendants and according to averments made by both parties there was mutual partition of properties and each of them claims that property in suit fell in their share. As per averments made in paras 17, 19, 20 and 22 of written statements and paras 5, 7, 8 and 10 of counter affidavit to injunction application filed by defendants-respondents no.1 to 4, alleged mutual partition did take place in the year 1967, after which defendants and Deep Chand allegedly raised constructions of house and shops over all the five residential plots and baithak, which come in share of defendants and Deep Chand and they remain in possession over same abadi property since 1967. If this contention of defendants is accepted that after constructions the property was being used as abadi then undisputedly on death of Deep Chand, who admittedly died issue-less and intestate. Since Deep Chand died leaving behind him defendant nos.1 to 4 and Chandagi Ram, all the 05 brothers under law of succession, his share devolve on his all brothers, the defendants as well as Chandagi Ram, father of plaintiffs and plaintiffs become co-owners/co-sharers in possession over the property in suit.

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Different from the averments made in written statements and objections filed by defendants in Court below, a new stand was taken by transferee pendente lite respondent no.5 in this appeal by stating that family partition did take place in the year 1996 (as against in 1967 as stated in written statements), which was reduced into writing on 28.2.2000. The copy of memorandum of family settlement has been filed at Annexure No.1 to the impleadment/stay application of respondent no.5 while an agreement for sale dated 28.7.2001 allegedly executed by Chandagi Ram, father of plaintiffs in favour of defendants has been filed at Annexure No.2. Though there are no pleadings or contention in written statements and objections of defendants in Court below about any Will deed of Bhagmal or any Family Settlement, yet photo copies of Will deed of Bhagmal and of family settlement were filed by defendants before the

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Trial Court. Considering above photo copies, Trial Court has held that prima facie it appears that mutual partition did take place among ancestors of parties but since plaintiffs have not filed any paper to show that disputed property fell in share of their father Chandagi Ram and though partition between parties is admitted, but it has to be decided upon evidence to be adduced in suit as to which plot fell in whose share.

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Perusal of above memorandum of family settlement and agreement at Annexure Nos.1 and 2 to the affidavit of respondent no.5 with his impleadment application shows that both documents are unregistered and are required to be proved upon evidence to be adduced before Trial Court. In any case, as far as agreement dated 28.7.2001 allegedly executed by Chandagi Ram, father of plaintiffs-appellants is concerned, it states that two shops which fell in his share were sold for a consideration of Rs.7,00,000/-. In view of above mentioned recitals about sale in the agreement it may not be termed as agreement, rather appears to be a transfer deed or sale deed. It is also pertinent to mention that after 1.1.1976, every agreement or transfer deed in respect of property worth over Rs.100/- is compulsorily registerable and an unregistered agreement is not admissible under law, by which no rights and title over the property can be transferred to defendants or anybody else and such a document may not be proved by any evidence. The Trial Court in impugned order has observed that " पककारोकेमधयपािरवािरकबटवाराहोनासवीकृततथयहैिकनतु िववािदतपलाटिकसपककेिहससेमेआयाइसपशनकािनसतारणपतावलीपरपूणरसाकय आनेकेउपरानतिकयाजानासंभवहैI”

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In view of above observation made by Court below and discussions made above, it may not be disputed that out of 05 plots and a Baithak, which forms disputed property and allegedly fell in the share of defendants-respondents no.1 to 4 and Deep Chand, as alleged in written statement of respondents nos.1 to 4 also devolved upon Chandagi Ram, father of plaintiffs-appellants on death of Deep Chand.

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Learned counsel for respondent no.5 has relied on the judgment passed by the Apex Court in the case of Venkataraja and others Vs. Vidyane Doureradjaperumal (D) Thr. Lrs. and others, Civil Appeal Nos.7605-7606 of 2004 order dated 10.4.2013, wherein it was held that respondent nos.3 to 10 being admittedly in possession of suit property, the appellants-plaintiffs had to necessarily claim the consequential relief of possession of the property and so the suit was not maintainable, as they did not claim consequential relief.

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The plaintiffs and defendants no.1 to 4 both claims themselves to be owners in actual physical possession over the property in suit and have made rival contentions that constructions over the property in suit belong to them. The plaintiffs have prayed for a decree against defendants for restraining them from interfering in their peaceful possession and constructions. It is also noteworthy that similar claims were made by both parties regarding constructions over the property in suit at the time of spot inspection by Court Amin, as mentioned in copy of report Amin at Annexure No.2 with appeal. In these circumstances at this stage, there is no reason to infer plaintiffs to be out of possession and there may be no requirement for seeking consequential relief of possession.

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In view of rival contentions of both parties claiming to be in actual physical possession over the property in suit i.e. open piece of land since plaintiffs claim their right, title and possession from the common ancestor of parties, they are undisputedly and prima facie proved to be co-sharers in view of averments made in paras 17, 19, 20 and 22 of written statements. Possession over the property in suit is to be decided upon evidence of parties and at this stage plaintiffs may not presumed to be out of possessions.

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The facts of above Venkataraja case are different and are not applicable to the facts of present case.

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In the case of Gangubai B. Chaudhary Vs. Sita Ram B.

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Sukhtankar AIR 1983 SC 742 , the Apex Court held that

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“where refusal to grant temporary injunction may preclude fair and just decision while grant of temporary injunction will not cause any inconvenience to the other party injunction should be granted in the interest of justice.”

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In view of discussions made above, I find that ancestral property from common ancestors has been claimed to have fallen in their share by both the parties and Trial Court has come to the conclusion that “it has to be decided upon evidence to be adduced in suit, as to which plot fell in whose share.”

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In these circumstances when admittedly mutual partition which took place in the year 1967 was not reduced in writing, for not filing any document of partition by plaintiffs, their case may not be disbelieved particularly when Trial Court has also put alleged family settlement subject to evidence to be adduced by parties. After death of Deep Chand also father of plaintiffs get share in the property in suit by succession. Hence I am of the considered view that plaintiffs have succeeded in proving a strong prima facie case, balance of convenience lies in their favour and in case of non issuance of ad interim injunction and transferee lis pendens is permitted to change the nature of possession and constructions over the property in suit, plaintiffs will suffer irreparably. On the other hand, balance of convenience neither lies in favour of defendants-respondents no.1 to 4, who claims to have sold their alleged rights nor in favour of respondent no.5 transferee pendente lite and by issuance of ad interim injunction defendants no.1 to 4 or respondent no.5 are not likely to suffer any loss whatsoever.

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I am of the considered view that learned lower Court has acted wrongly in giving contradictory findings as at one place it held that it is to be decided upon evidence as to which plot fell in whose share, contrary to which at another place observed that since plaintiffs have not filed any paper, so have failed to prove prima facie case. The learned lower court

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acted wrongly in appreciating facts and materials on record and ignoring the strong prima facie case of plaintiffs, balance of convenience in their favour and likelihood of irreparable injury to them in case of non issuance of injunction to preserve the property in suit till disposal of suit. Learned Trial Court erred in rejecting application 6-C for ad interim injunction. The impugned order is liable to be set aside and application for ad interim filed by plaintiffs is liable to be allowed.

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The appeal is allowed and impugned order rejecting application 6- C stands set aside. The application 6-C for ad interim injunction of plaintiffs stands allowed. Both parties are restrained from raising any constructions or changing the nature of possession and constructions over the property in suit and shall maintain and preserve status quo till final disposal of civil suit.

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Order Date :- 15.5.2019 Tamang

Raju and 3 Others v. Mahar Chand and 3 Others

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Raju and 3 Others v. Mahar Chand and 3 Others

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