Allowed

Brijesh Arora S/O Sh. Bihari Lal v. Suraj Arora S/O Late Sh. Ramkishan Arora

Rajasthan HC12 Dec 2019CMA/4530/2018

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the dismissal of a temporary injunction application. The Court held that the Trial Court erred in adjudicating title ownership prima facie, as it is a triable issue for the trial. The injunction was granted pending the final disposal of the suit.

What did the court decide?

Order dated 2.6.2018 set aside; Temporary Injunction application allowed; Status quo maintained over suit property.

Brijesh Arora S/O Sh. Bihari Lal Vs Suraj Arora S/O… — Property and Title | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Miscellaneous Appeal No. 4530/2018

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Brijesh Arora S/o Sh. Bihari Lal, Aged About 65 Years, B/c-Arora, R/o-214, Frontier Colony, Adarsh Nagar, Jaipur

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----Appellant

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Versus

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Suraj Arora S/o Late Sh. Ramkishan Arora, Aged About 48 Years, By Caste Sector-39B/1431, Chandigarh (Union Territory)

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Sameer Arora S/o Late Sh. Ramkishan Arora, Aged About 48 Years, B/c-Arora, R/o -Sector-66/2140, Muhali, Near Chandigarh, Punjab

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Sushila Arora W/o Late Sh. Mahesh Arora, Aged About 59 Years, B/c-Arora, R/o-214, Frontier Colony, Adarsh Nagar, Jaipur

¶9

Heena Parti W/o Sh. Anil Parti, Aged About 27 Years, B/cParti, R/o 63, Sindhi Colony, Near Devi Mandir, Jaipur

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Sarla Kaamra W/o Late Sh. Satish Kaamra (since deceased)

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5/1. Deepak Kaamra S/o late Shri Satish Kaamra, by caste Kaamra, R/o P-72, Pandav Nagar, Mayur Bihar, Phase Second, New Delhi.

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Bhawna Dheer W/o Deepak Dheer, Aged About 38 Years, B/c-Dheer, R/o 2948, In Front Of Balanand Ji Temple, Uniyaro Thakur Ka Rasta, Purani Basti, Jaipur

¶13

Surendra Arora W/o Braham Prakash, Aged About 67 Years, B/c-Arora, R/o 82/137, Mansarovar, Neelgiri Marg, Jaipur.

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Anju Manga W/o Sh. Arun Manga, Aged About 47 Years, B/c- Manga, R/o Mahalaxmi Enclave, Baran Road, Kota.

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----Respondents

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For Appellant(s) : Mr. Ashish Sharma For Respondent(s) : Mr. Intjar Ali for Mr. Raj Kumar Goyal

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HON'BLE MR. JUSTICE PRAKASH GUPTA

Order

(2 of 5)

[CMA-4530/2018]

12/12/2019

This Civil Misc. Appeal has been filed by the appellantplaintiff (hereinafter referred to as ‘the plaintiff’) against the order dated 2.6.2018 passed by Addl. District & Sessions Judge No. 17, Jaipur Metropolitan (hereinafter referred to as ‘the Trial court’) on an application for Temporary Injunction No.74/2015 filed by the plaintiff, whereby the said application has been dismissed.

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Facts of the case are that the plaintiff filed a suit for declaration, partition and permanent injunction against the respondents-defendants (hereinafter the defendants) before the Trial Court alongwith an application for temporary injunction, wherein it was stated that property in question i.e. Plot No. 214, Frontier Colony, Adarsh Nagar, Jaipur is an ancestral property owned by Bihari Lal, father of the plaintiff. At that time, Ram Kishan, father of defendants no. 1 and 2 was 16 years of age. The plaintiff and defendants are the successors of late Bihari Lal. Late Bihari Lal constructed the property in question by his personal income and got water and electricity connection over there. He also applied to Commissioner, Municipal Commissioner Improvement Trust, Jaipur for allotment and in this regard communications were made. Late Bihari lal died on 22.8.1989 and his son Ram Kishan Arora died on 19.4.1995. At present the plaintiff is peacefully residing there and having possession over the property in question except one room, which is possessed by Mrs. Sushila W/o late Mahesh Arora S/o late Bihari Lal. The defendants got prepared a forged and fabricated patta of the disputed property in their favour. It was also submitted that on 27.8.2015, the defendants no. 1 and 2 threatened the plaintiff and

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(3 of 5)

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[CMA-4530/2018]

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tried to dispossess him from the property in question. Further, it was also submitted that the LRs of late Ram Kishan Arora never resided in the disputed property and they are threatening the plaintiff to sell the property to any other person. In this view of the matter, the cause of action had arisen to the plaintiff to file the suit as also the application for temporary injunction as the property was owned by late Shri Bihari Lal Ji and after his death, the LRs of late Bihari Lal had equal 1/7^th share in the property in question.

¶27

The defendants filed the reply to the application for temporary injunction wherein it was stated that late Ram Kishan was the absolute owner of the property in question and he allowed his parents and his siblings for residing in the property in question. After the death of Ram Kishan, his legal representatives i.e. Suraj Arora, Sameer Arora, Sarla Kaamra (since deceased) now represented by her legal representative Deepak Kaamra, did not come to Jaipur for residing. It was also stated that actually plaintiff was allowed to reside in the property in question as a tenant.

¶28

The Trial Court vide its order dated 2.6.2018 dismissed the application for temporary injunction filed by the plaintiff.

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Hence, the present Civil Misc. Appeal has been filed.

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Learned counsel for the plaintiff submitted that the Trial court has failed to consider that the question of title of ownership would arise only after the evidence is led during the trial. However, the learned Trial Court erred in deciding prima-facie the title or ownership at the stage of deciding T.I. He has further submitted that the plaintiff is still in possession of the property in

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(4 of 5)

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[CMA-4530/2018]

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question since the death of late Shri Bihari Lal on 22.8.1989. This fact has been admitted by the defendants in reply to the application as also in the counter claim. He has further submitted that at the time when late Bihari Lal came from Pakistan, late Ram Kishan Arora was a minor and the property in question was acquired by Bihari Lal. However, the learned Trial Court has utterly failed to consider this aspect of the matter and on this count, the impugned order needs to be quashed and set-aside.

¶34

Learned counsel for the defendants supported the impugned order and stated the same to be just and proper.

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Heard. Considered.

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From a perusal of various documents available on record, it is evident and prima facie proved that Bihari Lal made several correspondences with the office of the Municipal Commissioner, Jaipur / Municipal Council. Permission to raise construction over the suit property was granted in favour of Bihari Lal and pursuant thereto the construction was raised by Bihari Lal. In the ration card of the plaintiff, his Voter ID Card, Aadhar Card and in challan papers, his address is mentioned as 214, Gali No.4, Frontier Colony, Adarsh Nagar, Ward No. 50, Jaipur i.e. the property in question, which goes to show that the plaintiff is in possession of the same since long. It is reveled from the record that the documents which were submitted by the plaintiff alongwith the application for temporary injunction, have not been considered by the trail court. In this view of the matter, at the time of deciding the application for temporary injunction, the Trial Court ought to have taken into consideration the prima-facie case, balance of convenience and irreparable loss, particularly when the

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(5 of 5)

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[CMA-4530/2018]

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issue of title or ownership was a serious triable issue and the same could have been decided during trial.

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The Coordinate Bench of this Court in the case of Peer

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Gulam Naseer Versus Peer Gulam Jelanee reported in RLR 1988 (2) page 871 has held that serious questions raised in the case can be finally decided only after parties may have led the evidence.

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The Coordinate Bench of this Court in the case of M/s. Toyal Bros. Versus Gram Panchayat Chichorwari, reported in RLR 1988 (1) 850, in para 6 of its judgment observed as under:

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“Both the courts below held that the plaintiff failed to make out a prima-facie case in his favour. The approach is wholly erroneous and unsustainable. There is no magic in the phrase “Prima-facie case”. What is implied by the phrase prima-facie case is that there should be serious question to be tried in the suit and that on the facts before the Court, it cannot be said that the case based on those facts is wholly untenable and not maintainable. Prima-facie case only means a substantial question raised bonafide which at the first sight needs investigation and inquiry.”

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In view of above, the order passed by the Trial Court is found to be arbitrary, perverse and therefor the same is liable to be set aside.

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Consequently, the appeal is allowed and the order dated 2.6.2018 passed by the Trial Court is set-aside. Both the parties are directed to maintain status-quo over the suit property till final disposal of the suit. Application of Temporary Injunction is allowed accordingly.

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Consequent upon disposal of the miscellaneous appeal, the stay application also stands disposed of.

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(PRAKASH GUPTA),J

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DK/55

Brijesh Arora S/O Sh. Bihari Lal v. Suraj Arora S/O Late Sh. Ramkishan Arora

Case brief

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Brijesh Arora S/O Sh. Bihari Lal v. Suraj Arora S/O Late Sh. Ramkishan Arora

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