Ramesh Kumar Singh Vs Lalan Prasad Singh

IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No. 18 of 2022

======================================================

Ramesh Kumar Singh son of Late Shashi Shekhar Prasad Singh Resident of House No. 70, Urmila Niwash, Gandhi Nagar, West Boring Canal Road, Patna- 800013.

¶4

... ... Appellant/s

¶5

Versus

¶6

1. Lalan Prasad Singh Son of Late Shashi Shekhar Prasad Singh Resident of House No. 70, Urmila Niwas, Gandhi Nagar, West Boring Road, Patna800013.

¶7

Smt. Bina Singh wife of Lalan Prasad Singh, aged about 71 years (Male) Son of Late Shashi Shekhar Prasad Singh Resident of House No. 70, Urmila Niwas, Gandhi Nagar, West Boring Road, Patna- 800013.

¶8

Manorama Devi Wife of Late Krishna Mohan Singh resident of Banshi Purandaha, Police Station- Dhandaha, District- Purnea- 854205.

¶9

Prakash Kumar Singh Son of Late Krishna Mohan Singh resident of Banshi Purandaha, Police Station- Dhandaha, District- Purnea- 854205.

¶10

Dilip Kumar Singh Son of Late Krishna Mohan Singh resident of Banshi Purandaha, Police Station- Dhandaha, District- Purnea- 854205.

¶11

Sanjiv Kumar Singh Son of Late Krishna Mohan Singh resident of Banshi Purandaha, Police Station- Dhandaha, District- Purnea- 854205.

¶12

Bindu Kumar Singh Son of Late Krishna Mohan Singh resident of Banshi Purandaha, Police Station- Dhandaha, District- Purnea- 854205.

¶13

Mala Devi Daughter of Late Krishna Mohan Singh Resident of Moh- Sipahi Tola, Dollar House Chawk, Purnea.

¶14

Renu Devi Wife of Lalan Prasad, D/o Harihar Prasad Singh resident of Birpur, District Supaul.

¶15

Ranju Devi wife of Neeraj Kumar Singh, D/o Harihar Prasad Singh resident of Housing Colony, M/20, Bariatu, Ranchi.

¶16

Shambhu Kumar Singh Son of Late Harihar Prasad Singh resident of Banshi Purandaha, Police Station- Dhandaha, District- Purnea.

¶17

Kundan Kumar Singh Son of Late Harihar Prasad Singh resident of Banshi Purandaha, Police Station- Dhandaha, District- Purnea.

¶18

Rahul Kumar Singh Son of Om Prakash Singh Resident of Supaur Jamua, P.O.- Garapur, District- Munger, presently residing at Renuka Sadan, Williams Town, Behind Ram Krishna Mission, Deoghar, Near Rani Kothi, Devghar- 814112.

¶19

Sanjay Kumar @ Sanjay Kumar Singh Son of Om Prakash Singh Resident of Supaurh Jamua, P.O.- Tarapur, District- Munger.

¶20

M/s Astara Projects Private Limited Through its Director Sri Rajesh Kumar Sikaria Son of Late Babu Lal Sikaria, resident of Exhibition Road, Patna- 1 having its registered office at 103, Sriram Plazza Station Road, P.S. Gandhi Maidan, Distt- Patna Pin Code- 800001.

¶21

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024

¶22

2/21

¶23

... ... Respondent/s

¶24

======================================================

¶25

Appearance : For the Appellant/s For the Respondent/s ===============	: Mr. Radha Mohan Pandey, Advocate Mr. Chandrashekhar Verma, Advocate : Mr. Rajendra Narayan, Sr. Advocate Mr. Nikhil Kumar Agrawal, Advocate Ms. Aditi Hansaria, Advocate Mr. Yash Sahaj, Advocate =======================================
CORAM: HONOU	RABLE MR. JUSTICE KHATIM REZA ORAL ORDER

¶26

15 03-01-2024

¶27

This Miscellaneous Appeal has been filed against the judgment and order dated 21.12.2021 passed by the learned Sub-Judge-V, Civil Court, Danapur, Patna in Title Suit No. 300 of 2019, whereby the learned trial court has rejected the injunction petition filed by the plaintiff/appellant under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure.

¶28

The plaintiff-appellant filed injunction petition for restraining the respondent 1^st set and 5^th set from making construction or creating any third party interest over the land situated at Gola Road described in schedule-C, which is part of Schedule-B, of the plaint.

¶29

The plaintiff-appellant filed Title Suit No. 300 of 2019 in the Court of Sub-Judge 5^th Danapur, Patna for declaring the registered gift deed dated 08.04.2015, 20.09.2019 and 12.08.2015 as described in Schedule-C as null and void and not binding upon the plaintiff and thereafter the same be treated as

¶30

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 3/21

¶31

partable land being part of Schedule-C, and also for declaring the registered development agreement dated 29.04.2016 executed by defendant 1^st set in favour of builder defendant 5^th set as null and void and not binding upon the plaintiff as described in schedule-H of the plaint and thereafter same be treated as partable land being part of Schedule-B of the plaint and also for directing the defendant 1^st set to execute registered sale deeds for Schedule-D land in favour of the plaintiff in lieu of land of Schedule-E as agreed. Further relief sought is that half share of the plaintiff be declared in the land described in Schedule-A, B, F and G by way of preliminary decree and thereafter separate Takhta may be allotted to the plaintiff by the process of court, and defendant 1^st set and 5^th set be restrained by an order of injunction from creating third party interest or encumbering the properties and from changing the nature of the land and defendant 5^th set be restrained from making any construction over the land of Schedule-H since it is part of land of Schedule-B.

¶32

The case of the plaintiff-appellant, in brief, is that plaintiff Ramesh Kumar Singh and defendant no. 1, namely, Lalan Prasad Singh are full brothers being sons of late Shashi Shekhar Prasad Singh, who jointly constitute Hindu family

¶33

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 4/21

¶34

under the Mitakhsar school of Hindu Law. The estate of late Shashi Shekhar Prasad Singh is joint and there is no partition by metes and bounds between two sons of late Shashi Shekhar Prasad Singh. It is contended that on 13.09.2012 by way of family arrangements, estate of late Babu Tej Narayan Singh (father of Shashi Shekhar Prasad Singh and Indu Shekhar Prasad Singh) was partitioned amongst his three sons; one son, namley, Chandra Shekhar Prasad Singh from first wife, and two sons, namely, Shashi Shekhar Prasad Singh and Indu Shekhar Prasad Singh from second wife of Babu Tej Narayan Singh. Chandra Shekhar Prasad Singh died in the year 1993 whereas Indu Shekhar Prasad Singh died in the year 1962 and Shashi Shekhar Prasad Singh died on 27.05.2016. The said partition by way of family arrangements was effected on 13.09.2012 among descendants of Chandra Shekhar Prasad Singh, Shashi Shekhar Prasad Singh and Indu Shekhar Singh. Chandra Shekhar Prasad Singh had two sons, namely, Arun Kumar Singh and Binay Kumar Singh whereas Shashi Shekhar Prasad Singh had two sons, namely, Lalan Prasad Singh and Ramesh Prasad Singh. Indu Shekhar had one son, namely, Ajit Kumar Singh. Shashi Shekhar Prasad Singh along with his two sons has been allotted 35.44 acres land at mauza Manikpur. Shashi Shekhar Prasad

¶35

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 5/21

¶36

Singh was in service, who retired as Assistant Commissioner, State Excise in September, 1987. The said Shashi Shekhar Prasad Singh, out of his income, acquired 3 kathas land through registered sale deed dated 26.02.1969 bearing Circle No. 247 of Plot No. 913-914. Shashi Shekhar Prasad Singh during his lifetime, executed registered Will on 14.10.2015 in favour of Smt. Jaya Singh, wife of Ramesh Kumar Singh. The wife of Ramesh Kumar Singh filed application for grant of letter of administration of Will which is registered as Title Suit No. 35 of 2018 pending in the court of learned Additional Sessions JudgeVII, Civil Court, Patna.

¶37

Further case of the plaintiff is that Shashi Shekhar Prasad Singh out of his income and savings from salary and agriculture income, acquired altogether 11 kathas 1 dhur 17 dhurki land situated at Thana No. 20 Tauzi No. 5557, khata no. 338, survey plot no. 139 (part) at mauza Dhanout, P.S. Danapur, District Patna, presently located at Gola Road, Patna described in Schedule-B of the plaint, through four registered sale deeds dated 07.09.1983 in the name of Krishna Mohan Singh, Harihar Prasad Singh, Sanjay Kumar Singh and Rahul Kumar Singh respectively. All are only name lenders due to trust and affection being fudiciary in nature.

¶38

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 6/21

¶39

The further case of the plaintiff is that the plaintiff possesses the original copy of the above stated four sale deeds. Harihar Prasad Singh and Krishna Mohan Singh both are brothers of Urmila Devi wife of Shashi Shekhar Singh, as such, both are brother-in-law of Shashi Shekhar Prasad Singh and maternal uncle of the plaintiff. The original registered sale deed was in possession of Shashi Shekhar Prasad Singh, who while suffering with ailments in his old age bequeathed his Patna property of Urmila Niwas through registered Will dated 14.10.2015 in favour of his daughter-in-law Smt. Jaya Singh. Father of the plaintiff handed over as stated above original copy of all registered sale deed to the plaintiff. Krishna Mohan Singh died on 01.01.2018. His heirs have been impleaded as party defendant 2^nd set in the said title suit. Harihar Prasad Singh died on 26.12.2017. His heirs and legal representatives has been impleaded as party defendant 3^rd set in the said title suit. It is contended that Harihar Prasad Singh and Krishna Mohan Singh are only name lenders. Sanjay Kumar Singh and Harihar Kumar Singh both are nephew of plaintiff and maternal grand son of Shashi Shekhar Prasad Singh. Shashi Shekhar Prasad Singh acquired the land in the name of both the maternal grand sons due to fudiciary relation with Om Prakash Singh, as such,

¶40

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 7/21

¶41

Sanjay Kumar Singh and Rahul Kumar Singh both are simply name lenders of registered sale deed nos. 5014 and 5072 both dated 07.09.1983. It is submitted that Rahul Kumar Singh has executed agreement dated 07.11.2017 under which he has admitted that altogether 11 katha 1 dhur 17 dhurki land has been acquired out of consideration money of his maternal grand father, namely, Shashi Shekhar Prasad Singh. Rahul Kumar Singh has executed registered gift deed dated 07.11.2017 in favour of Smt. Jaya Singh and Ramesh Kumar Singh through which he has gifted 2 kathas 10 dhurs land of Mauza Dhanout bearing khata no. 338, survey plot no. 139. However, he was only a name lender. It is further alleged that defendant no. 1 in collusion with Harihar Prasad Singh, Krishna Mohan Singh and Sanjay Kumar Singh fraudulently got executed registered deeds in his name and his wife Bina Singh. Harihar Prasad Singh and Krishna Mohan Singh gifted 4 kathas 1 dhur 17 dhurki land to Lalan Prasad Singh and Bina Singh on 08.04.2015. Sanjay Kumar @ Sanjay Kumar Singh gifted 2 katha 11 dhurs 17 dhurki in favour of Lalan Prasad Singh on 20.09.2016. Krishna Mohan Singh gifted 1 katha 10 dhurs in favour of Smt. Bina Singh, wife of Lalan Prasad Singh on 12.07.2015.

¶42

Further case of the plaintiff is that Harihar Prasad

¶43

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 8/21

¶44

Singh and Krishna Mohan Singh executed registered power of attorney dated 26.12.2009 in favour of Shashi Shekhar Prasad Singh for dealing with the property. Rahul Kumar Singh and Sanjay Kumar Singh, both jointly executed registered power of attorney dated 18.05.2012 in favour of Shashi Shekhar Prasad Singh with right endorsed to him to deal with the property in any manner. It is also contended that Shashi Shekhar Prasad Singh had also acquired 3.68 decimals land at Deoghar as described in Schedule-D of the plaint.

¶45

Further case of the plaintiff is that during the lifetime of father, it was agreed that Ramesh Kumar Singh will execute registered sale deed for the land of Dhanbad in favour of Lalan Prasad Singh who thereafter, will execute sale deed in favour of Ramesh Kumar Singh and according to the said agreement in good faith and trust, Ramesh Kumar Singh executed registered sale deed 28.01.2011 in favour of Lalan Prasad Singh for Dhanbad property. Further case of the plaintiff is that Ramesh Kumar Singh (plaintiff) on instruction of Lalan Prasad Singh purchased stamp paper for Rs.76,000/- in the year 2011 for execution of registered sale deed by Lalan Prasad Singh for Deoghar property but he fraudulently cheated the plaintiff and not turned up till date which is also cause of action.

¶46

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 9/21

¶47

Shashi Shekhar Prasad Singh also purchased 10 kathas land at Bokaro and 10 kathas land at Gaya which are the partable properties as described in Schedule-F and Schedule-G of the plaint.

¶48

The aforesaid suit was admitted on 13.09.2019 and summons were issued to the defendants. After admission of the plaint, the plaintiff-appellant filed injunction petition dated 07.12.2019, whereby notice was issued and after valid service of notice, respondent no. 1 and 2 and respondent no. 15 appeared and joint show-cause on behalf of the defendant nos. 1 & 2 and separate show-cause on behalf of defendant no. 15 were filed in reply to the said injunction petition.

¶49

After hearing the parties, the learned court has held that plaintiff has no prima facie case; neither balance of convenience is in favour of the plaintiff nor irreparable injury would be caused to the plaintiff if injunction is refused. Accordingly, injunction petition of plaintiff-appellant has been rejected.

¶50

Mr. Radha Mohan Pandey, learned counsel for the appellant submitted that the learned court below has not dealt with the essential ingredients i.e., prima-facie case, balance of convenience and irreparable loss and injury. It is submitted that

¶51

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 10/21

¶52

plaintiff, namely, Ramesh Kumar Singh and defendant no. 1, namely, Lalan Prasad Singh are full brothers and there is no partition in the estate of Late Shashi Shekhar Prasad Singh, as such, plaintiff being full brother of defendant no. 1 and son of Late Shashi Shekhar Prasad Singh has legal right for his half share in the entire property of his father, as such, he has prima facie case. It is submitted that Schedule -C land which is part of the suit land was acquired through four sale deeds by the father of the plaintiff and defendant no. 1 in the name of Krishna Mohan Singh and Harihar Prasad Singh, who are brother-inlaw(sala) of Shashi Shekhar Prasad Singh, father of the plaintiff and defendant no. 1. Sanjay Kumar Singh and Rahul Kumar Singh were nephew (Bhagina) of appellant no. 1 and defendant no. 1. Shashi Shekhar Prasad Singh was in fudiciary relationship with his brother-in-law and his maternal grandson, namely, Sanjay Kumar Singh and Rahul Kumar Singh. The said acquisition of the Schedule-C is a Benami acquisition made on 07.09.1983 while Benami Transactions (Prohibition) Act, 1988 was not in force. Since acquisition of Schedule-C land is of the year 1983 i.e. before coming into effect of Benami Transactions (Prohibition) Act, 1988, as such, Section 4 the prohibition of non-maintainability of any suit or claim had been saved under

¶53

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 11/21

¶54

Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988 while the same was operational before coming into effect of Prohibition of Benami Transactions (Prohibition) Amendment Act, 2016. It is submitted that all the four original sale deeds are in possession of the appellant and one of the name lenders Rahul Kumar Singh acknowledged that all the acquisitions are out of income of his maternal grandfather, namely, Shashi Shekhar Prasad Singh. Learned Counsel for the appellant further submitted that the appellant has right over every inch of the land, as such, the story of the possession of the builder over the land in question under the so-called development agreement dated 07.01.2017 executed by defendant nos. 1 and 2 are forcible possession without having legal approval. It is also stated that registered power of attorney dated 18.05.2015 executed by Rahul Kumar and Sanjay Kumar Singh in favour of Shashi Shekhar Prasad Singh as well as registered power of attorney dated 26.12.2009 executed by Harihar Prasad Singh and Krishna Mohan Singh in favour of Shashi Shekhar Prasad Singh are cogent proof that the name lenders had executed the referred power of attorney only with a view so that property standing in their name as name lender may revert back to the original owner i.e. Shashi Shekhar Prasad Singh but after the

¶55

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 12/21

¶56

death of Shashi Shekhar Prasad Singh, the elder brother, namely, Lalan Kumar Singh, respondent no. 1 executed fraudulently registered gift deed dated 08.04.2015, 20.09.2019 and 12.08.2015 in favour of respondent nos. 1 and 2 in order to grab the entire property. It is further submitted that Rahul Kumar Singh also executed registered gift deed dated 17.11.2017 in favour of Smt. Jaya Singh and Ramesh Kumar Singh transferring 2 katha 10 dhurs land of Schedule-B property. It is submitted that grant of injunction is equitable relief and a party praying for the same has to establish three ingredients i.e. prima facie case, balance of convenience and irreparable loss and injury. In the present case, all the three elements are in favour of the appellant.

¶57

On the other hand, Mr. Rajendra Narayan, learned senior counsel for the respondent no. 15 has submitted that the claim of the appellant in Title Suit No. 300 of 2019 is untenable in the eye of law. The present appeal is only concerned with Schedule-B properties which have been gifted by late Krishna Mohan Singh and late Harihar Prasad Singh to respondent nos. 1 and 2. The plaintiff-appellant sought relief for cancellation of gift deeds on the premise that the property is a benami property which was purchased out of the funds given by late Shashi

¶58

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 13/21

¶59

Shekhar Prasad Singh in the benami names. It is submitted that Section 4 of the Benami Transactions (Prohibition) Act, 1988 provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. It is submitted that there is an express bar in law for enforcement of any benami claim. It is submitted that as per registered development agreement dated 07.01.2017, respondent no. 15 has completed the building in the month of March, 2022 and application for grant of occupancy certificate was applied in April, 2022 which was issued by the concerned authority on 14.07.2022.

¶60

Learned senior counsel further submits that the claim of the plaintiff is that the Schedule B properties are joint family property and Schedule C property is part of the Schedule B property is absolutely wrong and baseless. The Schedule B properties are not the joint family property of the appellant and respondent no. 1. The Schedule B properties have been legally acquired by the respondent no. 1 through a validly executed gift deed. Hence, there is no question of raising any presumption in law of jointness. It is submitted that respondent nos. 1 and 2

¶61

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 14/21

¶62

after acquiring the Schedule B properties through gift amalgamated their lands and made construction of a boundary wall from all four sides in the year 1916-17 itself. Respondent nos. 1 and 2 also fixed an iron rod on the west side of the boundary wall and further made construction of temporary room on the amalgamated land wherein caretaker was residing. Being the owner and being in possession of the land acquired by them, respondent nos. 1 and 2 entered into registered development agreement dated 29.04.2016 and 02.05.2017 with the respondent no. 5 for construction of multi-storied building. Respondent no. 15 after getting the map sanctioned from Nagar Panchayat, Danapur Nizamat and after getting necessary permission from other authorities, the said construction has been completed over the land mentioned in the development agreement dated 29.04.2016 and 02.05.2017. It is also submitted that respondent no. 15 also entered into a share allocation agreement dated 29.01.2020 whereby the allotments were made whereby 14,485.50 Sq. Feet area was allotted by landlord with specific floors and flats whereas 14485.50 area was allotted to developer i.e. respondent no. 15. The details of the allotment has been mentioned in paragraph 18 of the counter affidavit filed on behalf of respondent no. 15. It is further contended that

¶63

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 15/21

¶64

respective parties came into exclusive possession and ownership of their respective shares pursuant to the development agreement and share allocation agreement. The respondent 1^st set as well as respondent no. 15 have sold some of their respective shares through registered sale deeds and third party rights have been created over the Schedule B properties. The Schedule B properties situated at Gola Road, Patna have admittedly been acquired by Late Krishna Mohan Singh, Harihar Prasad Singh and Sanjay Kumar Singh and subsequently has been gifted to respondent nos. 1 and 2. It is further submitted that Late Shashi Shekhar Prasad Singh was not in any kind of fiduciary relationship with his brother-in-law (Sala) namely, Late Krishna Mohan Singh and Late Harihar Prasad Singh and his Maternal Grandson, namely, Sanjay Kumar Singh (respondent no. 14). The Schedule B property was never acquired out of the income provided by Late Shashi Shekhar Pd. Singh. The said properties were purchased by person whose names have been mentioned in the respective sale deeds dated 07.09.1983 and whose names have also been mutated in the revenue records. It is also submitted that Late Shashi Shekhar Pd. Singh was not in any kind of fiduciary relationship with his Maternal Grandson, namely, Rahul Kr.

¶65

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 16/21

¶66

Singh (respondent no. 13). It is manifest from the fact that Rahul Kr Singh gifted the land admeasuring an area of 2 Kattha 10 dhurs (which was purchased by him through registered sale deed dated 07.09.1983) to the appellant and his wife Smt. Jaya Singh jointly through registered gift deed dated 17.1.2017. This would itself go on to show that the entire basis of claim being raised by the appellant falsify the claim of the plaintiffappellant. So far the agreement dated 17.01.2017 executed between Rahul Kr Singh and Ramesh Kumar Singh are sham documents and would not create any evidentiary value especially in view of the fact that on 17.01.2017 itself Rahul Kr Singh executed gift deed in favour of Ramesh Kr Singh being owner of the said land. So far Section 4(3)(b) of the Benami Transactions (Prohibition) Act 1988 is concerned, the appellant has vehemently relied upon which has been deleted from the statute by amending act namely Benami Transactions (Prohibition) Amendment Act, 2016. Hence, the legal advantage sought to be invoked by the appellant is nonest.

¶67

It is further contended that the trial court has rightly refused to grant injunction in favour of the appellant. It is further submitted that the settled principle of law is that even where prima facie case is in favour of the plaintiff, the court will

¶68

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 17/21

¶69

refuse injunction if the injury suffered by the plaintiff on account of refusal of injunction was not reparable. Reference has been made in the case of M/s Best Sellers Retail (India) Private Limited. Vs. Aditya Birla Nuvo Limited. & Others reported in AIR 2012 SC 2448 . In the case of Kishorsinh Ratansinh Jadeja Vs. Maruti Corporation and others reported in AIR 2009 SC 2882 , the Hon'ble Supreme Court has held that:-

¶70

“It is well established that while passing an interim order of injunction under Order 39 Rules 1 and 2 CPC, the court is required to consider the prima facie case, balance of convenience and irreparable injury.”

¶71

If plaintiff fails to satisfy any of the three grounds, the court cannot pass interim order of injunction in faovur of plaintiff.

¶72

Further in case of Dalpat Kumar and Another Vs.

¶73

Prahlad Singh and others reported in AIR 1993 SC 276, the Hon’ble Supreme Court has interpreted that prima facie case, balance of convenience and an irreparable loss . The Hon'ble Supreme Court has held that:-

¶74

“The court in exercise of power of granting an ad interim injunction has to preserve the

¶75

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024

¶76

18/21

¶77

subject matter of the suit by the status quo for the time being. It is further held by the Supreme Court that prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is substantial question raised, bona fide, which needs investigation and a decision on merits. Irreparable injury, however, doesn't mean that there must be no physical possibility of repairing the injury, but means only that the injury must be only a material one, namely one that cannot be adequately compensated by way of damages”

¶78

It is contended that it would be abundantly clear

¶79

that none of the grounds for grant of injunction have been satisfied by the appellant and the trial court has rightly refused to grant injunction in favour of the appellant.

¶80

Learned senior counsel for the respondents further submits that the present suit has been filed for cancellation of gift deed dated 08.04.2015, 20.09.2019 and 12.08.2015. The donor being owner, who acquired the same through registered sale deed dated 07.09.1983. Therefore, the nature of the sale deed of 1983 has also been challenged as Benami by the plaintiff-appellant after 33 years of the sale deed dated 07.09.1983. The conduct of the plaintiff-appellant becomes

¶81

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 19/21

¶82

slopy in as much as having slept over its right for more than 33 years. It will be inequitable on its prayer to restrain the owners of the property from dealing with the same having particular regard to the fact that a large portion of the area has already been conveyed to the purchasers. This aspect of the matter has been dealt in the case of Kishoresinh Ratansinh Jadeja (supra).

¶83

Considering the rival submissions of the parties and material available on record, it appears that the main question involved in the suit is whether the sale deed of year 1983 in favour of brother-in-law ( Sala ) and Maternal Grandson is Benami or self acquired and whether the Schedule B properties is joint family property or not. These issues have to be decided in the trial.

¶84

The question of injunction against respondent nos. 1 and 2 and 15 could be passed in the aforesaid facts and circumstances.

¶85

It is apparent from the case of the parties, the multi-storied building has already been completed and occupancy certificate issued by the authorities has already been obtained by the developer. It is also the admitted case of the parties that some of the flats have been sold by the developer as well as owners and third party interest has already been created.

¶86

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 20/21

¶87

It is also relevant to mention that respondent no. 15 is a registered company, and the interest of the respondent no. 15 is also involved in the suit property on the basis of registered development agreement under Bihar Apartment Ownership Act, 2006 as Section 5(1) of the said act provides that developer shall be absolute owner of his share and therefore interest of developer is involved in the suit property. The said development agreement was executed much prior to filing of the present suit. In the case of Mandali Ranganna and Ors. Vs. T. Ramachandra & Ors. reported in (2008) 11 SCC 1, it has been held that;-

¶88

“ A person who had kept quiet for a long time and allowed another to deal with property exclusively, ordinarily would not be entitled to an order of injunction. The court should not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequences depending upon the nature thereof and in dealing with such matters, the court must have all endeavour to protect the interest of the parties.”

¶89

Considering the aforesaid facts and circumstances

¶90

as discussed above, I am not inclined to interfere with the impugned order dated 21.12.2021 passed by learned Sub Judge-

¶91

Patna High Court MA No. 18 of 2022(15) dt.03-01-2024 21/21

¶92

V, Civil Court, Danapur in Title Suit No. 300 of 2019.

¶93

However the interest of justice would be served if

¶94

the respondents are permitted to carry out constructions of the building or dealing with the same, the same would be subject to the ultimate decision of the suit.

¶95

The trial court is directed to conclude the trial as early as possible. If any third party interest is created upon completion of the construction, the deeds, in question, shall clearly stipulate that the matter is subjudice and all sales shall be subject to the ultimate decision of the suit. The respondentdefendant nos. 1 and 2(jointly) as well as respondent no. 15 (developer) shall also furnish sufficient security at Rs. 50 lakh each, i.e. defendant nos. 1 and 2 (jointly) and respondent no. 15 (developer) independently before the learned trial court within eight weeks from the date of order of this court.

¶96

Accordingly, this Miscellaneous Appeal is dismissed subject to the observation and direction made herein before.

¶97

(Khatim Reza, J)

¶98

premchand/ prabhat

¶99

U

Ramesh Kumar Singh v. Lalan Prasad Singh

Case brief

What is this about?

What did the court decide?

Ramesh Kumar Singh v. Lalan Prasad Singh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Mohan Chaudhary Vs Barun Chaudhary and Ors.

Shree Kishun Rai Vs Pan Kuwar

Krishnadeo Prasad, Vs Shambhu Sharan Verma

Arjun Singh Vs Bhim Singh

Ram Prasad Das Vs Deebakar Das

Ram Kishore Hajjam Vs Bechu Pal