Dismissed

Satish Kumar Jasuja v. Rajan Setia and Ors.

Rajasthan HC5 Jan 2015CMA/520/2013

Case brief

AI extract

What is this about?

High Court dismissed four civil miscellaneous appeals challenging the partial allowance of temporary injunction applications. The court upheld the trial court's discretion to restrain defendants from alienating suit property while noting that completing construction rendered the status quo prayer redundant.

What did the court decide?

All four appeals dismissed; original orders restraining alienation of suit property upheld.

Satish Kumar Jasuja Vs Rajan Setia and Ors. — Property and Title | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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J U D G M E N T

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(1) Rajan Setia Vs. Satish Kumar & Ors. S.B. CIVIL MISC. APPEAL NO.1204 OF 2013

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(2) Ram Prakash Midha Vs. Satish Kumar Jasuja & Ors. S.B. CIVIL MISC. APPEAL NO.1205 OF 2013

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(3) Satish Kumar Jasuja Vs. Rajan Setia & Ors. S.B. CIVIL MISC. APPEAL NO.520 OF 2013

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(4) Satish Kumar Jasuja & Anr.Vs.Ram Prakash Midha & Ors. S.B. CIVIL MISC. APPEAL NO.522 OF 2013

Date of Judgment:

January 5, 2015.

P R E S E N T

HON'BLE MR. JUSTICE P.K. LOHRA, J.

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Mr. R.R. Nagori, Senior Advocate with Mr. Alkesh Agarwal for the appellants in CMA No.1204/13 and 1205/13, and for respondents in CMA No.520/13 and 522/2013.

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Mr. Manoj Bhandari and Mr. Suneel Purohit for appellants in CMA Nos.520/13 and 522/2013, and for respondents in CMA Nos.1204/13 and 1205/13.

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BY THE COURT:

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The genesis of these four appeals is two separate suits filed by Satish Kumar Jasuja, one in individual capacity and other jointly with his brother

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Satpal Jasuja, who is of unsound mind, against Rajan Setia and others as well as Ramprakash Midha and others. In the suit filed by Satish Kumar Jasuja in his individual capacity, he has craved the relief of cancellation of sale deed dated 12.06.2012 executed in favour of Rajan Setia. In the suit jointly filed by Satish Kumar Jasuja and Satpal Jasuja, prayer is made for cancellation Will, allegedly executed by Late Shri Jamnadas Jasuja, in favour of Amit Jasuja, arrangement deed dated 28^th July 2000, and sale-deed dated 12^th June 2012 executed in favour of Ramprakash Midha. In both the suits, applications for temporary injunction under Order 39 Rule 1 & 2 CPC have been laid seeking relief of restraintment against defendants Rajan Rajan Setia and Ramprakash Midha not to alienate the suit properties and to maintain status quo. At the behest of Vinod Jasuja and Amit Jasuja, separate applications were filed in both the suits under Order 1 Rule 10 CPC for impleadment as party defendants and the applications were allowed by the learned trial Court.

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The temporary injunction applications were contested by all the defendants in both the suits and on their behalf reply affidavits were submitted.

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The learned Addl. District Judge No.2, Sri Ganganagar partly allowed the applications moved for temporary injunction under Order 39 Rule 1 & 2 CPC by the plaintiffs vide orders dated 04.04.2013 directing the purchasers of the property in question not to alienate the same.

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S.B. CMA No.1204/13 has been filed by Rajan

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Setia against the order dated 04.04.2013 whereby the temporary injunction application of plaintiff Satish Kumar Jasuja bearing Civil Misc. Case No.80/12 has been partly allowed. Against the same order, S.B. CMA No.520/13 has been filed by Satish kumar Jasuja in his individual capacity. Likewise, against the injunction order dated 04.04.2013 passed on the application for temporary injunction filed by Satish Kumar Jasuja and Satpal Jasuja bearing Civil Misc. Case No.69/2012, Ramprakash Midha has filed S.B. CMA No.1204/13. Against the very same order Satish Kumar Jasuja and Satpal Jasuja have also filed S.B. CMA No.522/13.

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The plaintiff-appellant Satish Kumar Jasuja, in the suit which is filed in his individual capacity, has

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pleaded that Joint Hindu Family Property, of which Jamnadas Jasuja was Karta, is partitioned by consent of all the coparceners and residential premises at Plot No.14-B Block, Sri Ganganagar was divided into three parts. As per averments in the plaints, eastern side of the premises measuring 41.5 x 25.5 ft was given in share of Kaushlya Devi w/o Late Shri Jamnadas Jasuja, western side of the premises measuring 41.5 x 25.7 ft became share of the appellant Satish Kumar Jasuja and remaining part of the premises 51 x 8.7 ft came in the share of coappellant of Satish Kumar i.e. his insane brother Satpal Jasuja. It is further averred in the plaint that the said partition was reduced in the form of memorandum of settlement dated 30^th March 1981 signed by all the members of family. The memorandum of settlement is signed by coparceners, namely Jamnadas Jasuja, Kaushlya Devi, Satish Kumar Jasuja, Sudheer Kumar Jasuja and Vinod Kumar Jasuja but for insane brother Satlpal Jasuja and copy thereof was also endorsed to Municipal Board, Sri Ganganagar. As per the version of appellant Satish Kumar Jasuja, after partition of the property, he alongwith his family shifted to Surat for carrying out his business during lifetime of his father Jamnadas Jasuja. Later on, in the year 2003, Jamnadas

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Jasuja died when he was living with his other son Vinod Kumar and grandson Amit. Taking advantage of his illhealth and myopic vision with old age, as per the plaintiffs, Vinod Kumar and Amit misled Jamnadas Jasuja and allured him to execute arrangement deed cum Will on 28^th July 2000 in ignorance of memorandum of settlement and partition. According to the plaintiff, Vinod Kumar prevailed over Late Jamnadas Jasuja and due to his failing memory Jamnadas Jasuja executed arrangement deed cum Will by transferring property in favour of his grandson Amit Jasuja, who subsequently transferred the said property to Vinod Jasuja by a registered instrument. In the suit jointly filed by Satish Kumar Jasuja and his insane brother Satpal Jasuja, it is averred that the share belonging to Satpal Jasuja was got transferred in the name of Amit Jasuja/Vinod Kumar Jasuja and later on the suit property was sold to Ramprakash Midha. Serious allegations were made against Vinod Kumar and Amit that they are using deceitful means to deprive Satpal Jasuja, who is of unsound mind, from his property. Prayers were made in the suits for cancellation of arrangement deed, Will and the sale-deeds.

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Asserting his possession over the suit property,

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the appellant-plaintiff has specifically averred that so far possession has not been handed over to Rajan Setia by Amit Jasuja and as such he has not derived any title over the property in question by virtue of memorandum of settlement executed in the year 1981. It is also stated that subsequent transfer of the property is of no consequence. On the strength of these allegations, prayers were made in both the suits for temporary injunction against the defendants to maintain status quo regarding suit property.

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Defendant-purchasers Rajan Setia and Ramprakash Midha in their replies inter-alia submitted that the property in question was a self acquired property of Late Jamna Das Jasuja and neither any memorandum of settlement was executed, nor the property was partitioned therefore no such document is admissible in evidence. The defendants emphasized that Jamnadas Jasuja, Kaushalya Devi and Vinod Kumar had not signed the memorandum of settlement. The purchasers of property denied any right, title or interest of plaintiffs stating that plaintiff Satish Kumar had already left for Gujarat in the year 1969 earlier to execution of partition deed on 30.03.1981. They also averred that mental

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condition of Late Jamnadas Jasuja was well till his death. While accepting execution of the registered arrangement deed in favour Amit Jasuja on 28.07.2000 with regard to the property in question, it is reiterated that the property was self acquired property of Late Jamnadas Jasuja and the arrangement deed as well as Will was executed by him in his good health and proper mental condition though he was a old person at that time. As far as registration of sale-deeds is concerned, the defendants have stated that the same were rightfully got registered. Defendant-purchasers have also pleaded in their return that they are in possession over the suit property.

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Defendants Amit Jasuja and Vinod Jasuja in their replies have reiterated the stand taken by purchasers of property and raised preliminary objection that the property in question was neither a Hindu Undivided Family property, nor such document was produced rather the property was self acquired property of Late Jamnalal Jasuja purchased on 19.02.1935 and till then the plaintiff Satish Kumar Jasuja had not born. It was emphasized that the memorandum of settlement does not bear signatures of all the family members and its copy is not on the record of Municipal Board despite

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that copy of settlement was submitted fraudulently verified by Assistant Engineer, as such the suit is not maintainable, and further the parties to the settlement having not been impleaded as party defendants in the suits, the suits are liable to be rejected.

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Learned Senior Counsel, Mr. R.R. Nagori for the appellants in CMA No.1204 of 2013 and 1205 of 2013, while espousing the cause of defendant-purchasers, has vehemently argued that the learned Court below has acted dehors the sound legal principles in partly allowing the temporary injunction applications. Learned counsel would contend that the appellants are the bonafide purchasers of the property and this fact is acknowledged by the learned Court below in the impugned orders, therefore, in these circumstances the order restraining them from alienating the suit property is unjust and arbitrary exercise of discretion by the learned Court below. Mr. Nagori submits that as a matter of fact, the very edifice of both the suits is the alleged memorandum of settlement which is under serious clouds and inadmissible in evidence, therefore, by granting even limited indulgence to the plaintiffs the learned Court below has acted perversely and capriciously, warranting

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interference with the impugned orders. While joining issue with the plaintiff-appellants, Satish Kumar & Anr., in Civil Misc. Appeal No. 520 of 2013 and 522 of 2013, learned counsel Mr. Nagori submits that the requisite construction has already been completed, therefore, prayer for maintaining status quo vis-à-vis suit property has gone redundant and infructuous and as such Appeal No. 520 of 2013 and 522 of 2013 merit rejection. In support of his contention, Mr. Nagori has placed reliance on a decision of Hon’ble Apex Court in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr. (AIR 2003 SC 4548).

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Mr. Manoj Bhandari, learned counsel for appellant-plaintiffs, submits that when the learned trial Court has found prima facie case in favour of appellantplaintiffs, it ought to have granted the reliefs prayed for in the temporary injunction applications i.e. maintaining status quo regarding the suit property. Mr. Bhandari would contend that by not granting the relief of status quo, the learned Court below has committed serious illegality in exercise of its jurisdiction which is per-se in disregard of sound legal principles. While defending the impugned orders to the extent the learned Court below

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has granted limited indulgence to the plaintiff-appellants, Mr. Bhandari has urged that in the facts and circumstances of the case, taking into account the contentious issues, the applications for temporary injunction merit acceptance in toto so as to direct the defendants to maintain status quo regarding the suit property. In support of his contentions, Mr. Bhandari has relied on a decision in the case of Sheela Devi Vs. Lal Chand [(2006) 8 SCC 581)].

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I have heard counsel for the parties and perused the impugned orders.

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The genesis of litigation in all these four appeals is as usual property dispute between siblings. In both the suits, real brothers are pitted against each other for asserting their right in the suit property as a consequence of alienation of the suit property by sibling Vinod Jasuja and his son Amit Jasuja to Rajan Setia and Ram Prakash Midha. The bone of contention in both the suits is testamentary instrument allegedly executed by Late Shri Jamnadas Jasuja in favour of his grandson Amit Jasuja, who is son of Vinod Jasuja. It also emerges out from the pleadings that part of the property which Amit

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Jasuja has acquired by way of Will from his grandfather was alienated to his father Vinod Kumar Jasuja and part of the property was retained by him. The property which was retained by Amit Jasuja is sold to Rajan Setia by him through his power of attorney i.e. his father Vinod Kumar Jasuja and the property which was alienated to Vinod Kumar Jasuja by Amit Jasuja is sold to Ram Prakash Midha by Vinod Kumar Jasuja through his power of attorney i.e. his son Amit Jasuja. They have therefore stepped in the shoes of vendors of the property as owners.

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On the other hand, Mr. Satish Kumar Jasuja and his insane brother Satpal Jasuja are claiming their respective shares in the property on the strength of partition and memorandum of settlement allegedly signed by all the coparceners. The lis involved in both the suits is nature of the property as to whether it is a joint Hindu family property or it was owned by Late Shri Jamnadas Jasuja. On evaluation of the averments contained in the applications for temporary injunction and the reply affidavits and other materials in both the suits, the learned Court below has found that the true status of the property that whether it was self acquired property of

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Jamnadas Jasuja or it was a joint Hindu family property can be ascertained after taking into account the evidence of the rival parties and at this stage it is not possible to draw any inference in this behalf. The learned Court below has also taken into account the fact that Rajan Setia and Ram Prakash Midha are bonafide purchasers as they have paid the entire consideration amount to the respective vendors.

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By taking note of all the pros & cons, the learned trial Court in both the suits exercised its discretion to partly allow the temporary injunction applications by restraining defendants-appellants from alienating the property. The learned trial Court while realizing the fact that appellant Rajan Setia and Ram Prakash Midha are bonafide purchasers and are having possession over the suit property, has not passed any restraining order for maintaining status quo. Therefore, in totality, the learned Court below equibalanced the situation so that none of the litigants be put to hardship during the pendency of the suits. It is also brought to my notice that the purchasers have already completed the requisite construction and in the changed scenario, the relief prayed in temporary injunction applications for

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maintaining status quo regarding suit property has gone redundant and infructuous.

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Now the question that remains to be addressed in all these appeals is the restraining order against alienation of the suit property. After examining the impugned orders, there remains no quarrel that learned Court below has found prima facie case in favour of plaintiff-appellants and has also recorded a finding of fact that the issues cropped up in the suits are contentious. In this view of the matter, in my opinion, the learned Court below has exercised its discretion judiciously and there is no semblance of proof that it has acted perversely, capriciously or in disregard of the sound legal principles warranting interference with the impugned orders. It is trite that granting or refusing temporary injunction is within the sole domain of the Court of first instance and appellant Court is not expected to interfere with sound exercise of discretion of the Court of first instance even if other view is possible. While examining the requisite parameters for exercising appellate jurisdiction in such matters, this Court in Smt. Vimla Devi Vs. Jang Bahadur (AIR 1977 Raj. 196) has held:

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I have given my earnest

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consideration to the contentions raised on behalf of the defendant-petitioner. The order refusing temporary injunction is of a discretionary character. Ordinarily Court of appeal will not interfere with the exercise of discretion passed by the trial Court and substitute for it its own discretion. The interference with the discretionary order, however, may be justified if the lower Court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all the relevant records.

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In the light of the above observations, I have now to see whether it was open to the learned District Judge to interfere with the order of the learned trial Court. It is well settled that the grant of temporary injunction is a discretionary order and the decision of the first Court could not be easily interfered with by the appellate Court vide Musa v. Badri Prasad, ILR (1953) Raj 257. The mere possibility of the appellate Court coming to a different conclusion on the same facts and evidence will also not justify interference vide Wazir Sundar Singh v. Mst Farida Khanam, AIR 1920 PC 132. Another well established principle while disposing of the application under Order 39, Rules 1 and 2, C.P.C. is that when the Court while dealing with the case for grant of temporary injunction decides the question of prima facie case, it should apply its judicial mind to the materials which are placed on the record and if it does not do so then it commits illegality in the exercise of jurisdiction and in that case the High Court is competent to interfere in revision in such a case vide Musa v. Badri Prasad (supra). The view taken in Musa v. Badri Prasad (supra) has been followed by Kan Singh J. in Girdhari Lal v. Mahadevi Sharma, AIR 1958 Raj 237. It has been held in this case that the appellate Court should be slow in upsetting a decision of a trial Court in a matter relating to grant of temporary injunction unless the decision of the trial Court is arbitrary, perverse or is not based on sound legal principles. It has been further

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observed in that case that when the appellate Court does not apply its judicial mind on all the materials brought on the record then in that case the approach of an Appellate Court would be wrong and contrary to the well established principles laid down by the High Court, more so when the appellate Court does not deal with the reasoning that has prevailed with the trial Court and further when it does not apply its judicial mind on the materials placed on the record.

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Hon’ble Apex Court in Wander Ltd. & Anr. Vs. Antox India P. Ltd. [1990 (suppl) SCC 727], has held that if the discretion has been exercised reasonably by the trial Court, appellate Court will not re-assess the material and seek to reach a different conclusion. The Court held as under:

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The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion

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under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : (SCR721)

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... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.

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The appellate judgment does not seem to defer to this principle.

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This Court again in case of Rajasthan State Electricity Board Vs. Moolchand Jangir (1993 (3) WLC (Raj.) 338) reiterated the same principle while dilating on powers of appellate Court in such matters. The Court held as under:

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The jurisdiction of an Appellate Court to interfere with an order passed by a trial court in deciding the application for grant of injunction is very limited. The appellate Court can interfere with an order of the trial Court granting or refusing to grant injunction only when it is satisfied that the trial court has acted contrary to law or has acted arbitrarily or

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that the findings of the trial court regarding the three requirements of grant of injunction are perverse or capricious or that there has been a misreading of the pleadings or evidence. Only on satisfaction of the existence of any one or more of these factors, a lower Appellate Court can overturn order of the trial court. The jurisdiction of an appellate Court is not coextensive with that of the trial court while hearing an appeal against an order made on an application for grant of injunction. The appellate court is under a duty to manifestly show in its order that the trial court has committed some grave error of law or has acted arbitrarily or capriciously while deciding the application for grant of injunction. Without recording such conclusion, which must itself be supported by reasons, an appellate court cannot interfere with the order of the lower court. An appellate court cannot set aside the order of the trial court merely because on an application of the pleadings and the evidence, it may form an opinion other than the one formed by the trial court. If an appellate court interferes with the order of the trial court passed while deciding an application for temporary injunction, ex debitio justicea, the High Court in exercise of its revisional jurisdiction not only can but must interfere and nullify the order of the appellate Court. In such a case it becomes the duty of the High Court to correct error of the appellate court.

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In view of foregoing discussion and the settled position of law, the impugned orders passed by the learned Court below on applications for temporary injunction are absolutely defensible and do not warrant any interference.

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Before parting, I am hasten to add that dispute is between the siblings and bone of contention being the immovable property, the learned Addl. District Judge No.2, Sri Ganganagar is expected to decide the suits filed by appellant Satish Kumar Jasuja in his individual capacity as well as alongwith his brother, as expeditiously as possible.

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Resultantly, all these four appeals being devoid of merit are hereby dismissed.

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Let copy of this order be placed in file of each

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case.

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arora /

Satish Kumar Jasuja v. Rajan Setia and Ors.

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Satish Kumar Jasuja v. Rajan Setia and Ors.

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