Dismissed

Sarju Devi v. Kalu Ram Sharma and Ors.

Rajasthan HC12 May 2017CMA/720/2015

Case brief

AI extract

What is this about?

In an appeal against a temporary injunction order in a property suit, the High Court held that the appellant's late claim of fraud obtained from the trial to Supreme Court was an afterthought. The Court found no perversity in the lower court's order and dismissed the appeal.

What did the court decide?

Instant appeal dismissed with no order as to costs.

Sarju Devi Vs Kalu Ram Sharma and Ors. — Property and Title | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Miscellaneous Appeal No. 720 / 2015

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Sarju Devi w/o Shri Jagdish Narain aged 62 years, r/o village Labana, Tehsil Amer District Jaipur

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----Appellant

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Versus

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(1) Kalu Ram Sharma s/o Shri Gopiram by caste Bagra Brahmin, r/o village Bhanpura Kalan, Tehsil Jamwaramgarh District Jaipur at present Plot No.A-6, Sitarampuri, Amer Road, Jaipur

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(2) Jagdish s/o Late Shri Prabhat

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(3) Hanuman Sahai s/o Late Shri Prabhat

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(4) Gopal s/o Late Shri Prabhat

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(5) Bhagwan Sahai s/o Late Shri Prabhat

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(6) Kailash Narain s/o Late Shri Prabhat

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(7) Sitaram s/o Late Shri Prabhat

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(8) Smt. Lada Devi w/o Late Shri Prabhat

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(9) Kamla Devi d/o Late Shri Prabhat

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All by caste Brahmin, r/o village Labana, Tehsil Amer, District Jaipur ----Respondent Reserved on : 17^th April 2017 Pronounced on : 12^th May 2017

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For Appellant(s) : Mr. P.S. Sirohi

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For Respondent(s) : Mr. Krishan Sharma

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HON'BLE MR. JUSTICE JAINENDRA KUMAR RANKA

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Judgment

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The instant misc. appeal under Order 43 Rule 1 CPC filed by plaintiff appellant against rejection of her application for temporary injunction and allowance of counter temporary injunction of defendant respondents in a suit for declaration and

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(2 of 5)

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[CMA-720/2015]

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injunction filed before the Addl. District Judge No.4, Jaipur District, Jaipur.

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It is the case of plaintiff that decree obtained by defendant no.1 dt 31.8.2001 was null & void as it was obtained by fraud. According to the plaintiff although she was a party to such suit, but was not in fact present in the suit and the defendant in that suit, Prabhu Narain, took her thumb impression on blank papers and form which was misutilized. According to the plaintiff, she claims herself to be an illiterate lady. She was in possession of the suit property purchased by registered sale-deed dt 5.4.1997 from Prabhu Narain and not bound by such decree dt 31.8.2001 and was entitled to restrain the defendant not to cause any disturbance or interference in the peaceful possession of the plaintiff and not to initiate any proceedings in furtherance of the decree dt 31.8.2001.

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The defendant refuted allegations of the plaintiff and asserted that the case set up by the plaintiff was nothing but an attempt to thwart a decree which has been upheld till the Apex Court in a suit for specific performance filed against Prabhat alias Prabhu Narain and plaintiff in the instant suit. It was further asserted that the plaintiff was not in possession of the suit property and it was defendant Kalu Ram, whose name was recorded in the revenue record, in possession of the property and was entitled to restrain the plaintiff from causing any interference in such possession of the defendant.

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Learned trial court after hearing the parties and appreciating the material available on record, concluded that none

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(3 of 5)

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[CMA-720/2015]

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of the factors necessary to claim temporary injunction were in favour of the plaintiff but such factors were rather in favour of defendant no.1, rejected the plaintiff-appellant’s temporary injunction application, and allowed the counter temporary injunction application of the defendant no. 1 by order dt 25.2.2015.

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Feeling aggrieved by such order, the plaintiff appellant has preferred this appeal.

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Learned counsel for the appellant contended that the order passed by the trial court was bad in law for the decree dt 31.8.2001 was obtained by playing fraud upon the plaintiff, who was an illiterate lady and whose thumb impression was obtained in blank papers and form.

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6.1 Learned counsel further contended that there is a serious dispute in the suit which could only be resolved after recording evidence, and thus the plaintiff appellant was entitled to obtain relief as claimed in the temporary injunction application, and in support of it, relied on Vaish Aggarwal Panchayat v. Inder Kumar & Others 2016 (1) WLC (SC) Civil 124, The City Municipal Council Bhalki v. Gurappa 2016 (1) WLC (SC) Civil 82, Nagabhushanammal v. C. Chandikeswaralingam 2016 (1) WLC (SC) Civil 603, Chandrabhai K. Bhoir & Others v. Krishna Arjun Bhoir & Others AIR 2009 SC 1645, Margret Almeida & Others v. Bombay Catholic Coop. Housing Society Ltd. & Others 2012 (1) WLC (SC) Civil 573, South Eastern Coalfields Ltd. v. State of M.P. & Others (2003) 8 SCC 648, A.V. Papayya Sastry & Others v. Government of

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(4 of 5)

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[CMA-720/2015]

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A.P. & Others AIR 2007 SC 1546.

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Per contra, learned counsel for the defendant respondent contended that the impugned order was just and proper and there was no perversity or illegality and no interference by this court is necessitated or warranted. Learned counsel relied upon the judgments rendered in Sri Hanumanthappa v. Sri Muninarayanappa 1997 DNJ (SC) 6, M. Gurudas & Others v. Rasaranjan & Others 2007 (1) WLC (SC) Civil 313, Shetra Pal v. Smt. Renu & Others 2002 (1) WLC (Raj.) 559.

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I have heard the learned counsel for the parties and have carefully gone through the impugned order and material available on record.

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8.1 A bare glance at the material available on record, reveals that suit for specific performance and injunction was filed by Kalu Ram (defendant in the present suit out of which instant appeal originates) against Prabhat on 4.7.1987 on the basis of an agreement dt 11.2.1987.

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8.2 Smt. Sarju Devi, the present appellant, was impleaded in such suit as she has purchased the property from Prabhu Narain alias Prabhat, during pendence of the suit. Such suit was contested by Smt. Sarju Devi (present appellant) who submitted her separate written statement in the suit. It is further revealed that in such suit she was represented by duly appointed counsel and the suit was decreed by the trial court on 31.8.2001, and such decree was assailed before appellate court and the appeal was dismissed on 28.12.2011. The judgment and decree of the

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(5 of 5)

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[CMA-720/2015]

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appellate court was further assailed before this court by way of Second Appeal No. 5870/2011, which too, was dismissed on 27.9.2011, against which a Review Application was preferred and the same was also dismissed by this court on 18.4.2014. The appellant challenged such dismissal before the Hon’ble Apex Court by way of SLP No.9248/2014 and the same was dismissed by the Hon’ble Supreme Court on 14.7.2014. It can further be gauged from revenue records that name of the defendant respondent Kalu Ram has been recorded as khatedar tenant which prima facie displays that the property was in possession of the defendant respondent. The theory of fraud propounded by the appellant after contesting the suit upto the Supreme Court, duly represented by various counsel, prima facie, appears to be an after-thought, a devise to thwart the decree confirmed upto the Apex Court.

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Thus, on the over-all analysis of the sequence of events, and the material available on record, there is no perversity, arbitrariness or capriciousness in the order impugned, so as to call for interference of this court, and the appeal being devoid of merits, is liable to be dismissed and accordingly dismissed. No order as to costs.

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(JAINENDRA KUMAR RANKA)J.

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113

Sarju Devi v. Kalu Ram Sharma and Ors.

Case brief

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Sarju Devi v. Kalu Ram Sharma and Ors.

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