Disposed

Shamsher Singh and Others v. Bishambar Singh and Others

Uttarakhand HC4 Jul 2019WPMS/1771/2010

Case brief

AI extract

What is this about?

The High Court in a writ petition directed the Assistant Collector to restore the earlier interim stay order maintaining status quo in a declaration suit involving family property, rejecting the vacation order passed after new respondents were impleaded.

What did the court decide?

The court restored the interim order dated 31.01.2005 and directed the Assistant Collector to expeditiously decide the pending declaration suit.

Shamsher Singh and Others Vs Bishambar Singh and Others — Property and Title | Uttarakhand HC (2019)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (M/S) No. 1771 of 2010

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Shamsher Singh & Others

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...Petitioners Vs.

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Bishambar Singh & Others

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...Respondents

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Mr. Sagar Kothari, Advocate holding brief of Mr. Ramji Srivastava, Advocate for the petitioners.

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Mr. Sanjay Kumar, Advocate holing brief of Mr. Tapan Singh, Advocate for respondent nos. 1 to 4.

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Mr. Pooran Singh Rawat, Brief Holder for the State of Uttarakhand/respondent no. 5. Mr. B.S. Negi, Advocate for respondent no. 6.

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JUDGMENT

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Hon’ble Sharad Kumar Sharma, J (Oral)

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The present writ petition arises out of an interlocutory order dated 29.11.2006 and 02.06.2010 as passed by the Assistant Collector in Case No. 22 of 2004-05 ‘Shri Shamsher Singh & Others vs. Shri Bishambar Singh & Others’ and the Commissioner’s order in Revision No. 15/2006-07 ‘Shri Shamsher Singh vs. Shri Bishambar Singh’ respectively.

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Cutting short the controversy there was a Suit, which was instituted by the petitioner being Case No. 22 of 2004-05 ‘Shri Shamsher Singh & Others vs. Shri Bishambar Singh & Others’ before the Assistant Collector for declaration of the right and title of the present petitioner Shamsher Singh and Others. Declaration was sought as against the respondent nos. 1 to 4 under Section 229B of U.P.Z.A. & L.R. Act. At the time when the Suit was filed the plaintiffs, petitioners herein, they have filed an application under Section 229D for the grant of interim order. Consequently, the Court of Assistant Collector considering the prima facie case passed an order on 31.01.2005 thereby granted an order on 31.01.2005, which is quoted hereunder, by virtue of which in view of the endorsement, which was made in the application under Section 229D itself it was directed that

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the parties would neither deal with the property in any manner nor would change its nature:

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“uez fuosnu gS fd layXu “kiFk i= esa n”kkZ;s x;s rF;ksa ,oa dkj.kksa ds vk/kkj ij U;k; fgr esa izkFkZuk gS fd izfroknhx.k dks fuEu lwph esa of.kZr Hkwfe dks fdlh Hkh izdkj ls foØ; djus rFkk mlds Lo:Ik cnyus rFkk mlds Åij ls isM+ vkfn dkVus o fdlh Hkh izdkj ds gLr{ksi vkfn djus ls nkSjkus okn LFkk;h fo’ks/kkKk fd;s tkus dh d`ik dh tk;sA

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	fooj.k	Hkwfe
Hkwfe [kljk	ua0	{ks=Qy gs0 esa
677		0-73
679		0-016
682		0-008
683d		0-032
689		0-032
691@1		0-016
692@2		0-036
695		0-255
698		0-001
702		0-065
	vkns”k

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oknh vf/koDrk dks izkFkZuk i= vUrxZr 229 Mh m0iz0t0fo0 vf/k0 dks lquk x;k fookfnr Hkwfe dks fdlh izdkj ls foØ; djus Lo:Ik cnyus isM+ dkVus ls i{kdkjksa dks vfxze vkns”kksa rd fuf’k) fd;k tkrk gSA”

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The present respondent nos. 1 to 4, who were opposing the suit in question, they sought vacation of the stay order by filing objection to it on 13.06.2005 under Order 39 Rule 4 of C.P.C. made applicable on the proceedings under Section 341 of U.P.Z.A.&L.R. Act. Ultimately, on considering the stay vacation application of respondent nos. 1 to 4, the same was rejected on 30.11.2005. Consequently the effect of which was that the order dated 31.01.2005 granted under Section 229D was maintained.

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Subsequently, a further development has taken place it was that during the pendency of the suit, that respondent nos. 7, 8 & 9 had sought their impleadment in the Suit in question on the ground that they are the purchaser of the property from the respondent nos. 1 to 4, who had sold the property in dispute to them by virtue of the sale deed dated 27.11.2004.

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Consequently, after their impleadment was allowed the respondent nos. 7 to 9 yet again had filed an application under Order 39 Rule 4 of C.P.C. for vacation of the stay order dated 31.01.2005, which otherwise stood affirmed after the rejection of the application under Order 39 Rule 4 of the respondent nos. 1 to 4. On considering the application filed by the newly impleaded respondent nos. 7 to 9, the Court of Assistant Collector by virtue of the impugned order dated 29.11.2006 as passed in Case No. 22 of 2004-05 had vacated the interim order dated 31.01.2005, which otherwise stood earlier affirmed by the order dated 30.11.2005 by rejection of application to vacate the same.

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Being aggrieved against the vacation of the stay order passed under Section 229D dated 29.11.2006, the present petitioners preferred a revision being Revenue Revision No. 15 of 2006-07 ‘Shri Shamsher Singh vs. Shri Bishambar Singh’ under Section 333 of U.P.Z.A.&L.R. Act and the said revision too stood dismissed by the judgment dated 02.06.2010 by the Court of the Additional Commissioner, consequently affirming the stay vacation order, which was done by the Court of Assistant Collector by an order dated 29.11.2006.

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On considering the factual backdrop of the case in question and hearing the counsels, in particular, the fact that the rights inter se between the parties is yet to be settled in a regular proceedings of declaration under Section 229B, which was emanating to them since it was arising between the members of family, which is still pending consideration before the Court of Assistant Collector and their respective rights are yet to be given shape on merits and also considering the fact that when the earlier set of defendants to the Suit for declaration had filed their application for vacation of the injunction order, when their application stood rejected on 30.11.2005 then there was no new ground available to the Assistant Collector at a later stage after the impleadment of the present respondent nos. 7 to 9, who are the predecessors or who had stepped in the shoes of original

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defendant because of subsequent purchase from respondent nos. 1 to 4, could not have taken a contrary view and have passed an order impugned dated 29.11.2006, by virtue of which the interim order already granted on 31.01.2005 was vacated.

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Even otherwise also in accordance with the provisions contained under Section 38(3)(d) of the Specific Relief Act, which is quoted hereunder:-

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“where the injunction is necessary to prevent a multiplicity of judicial proceedings.”

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Normally, subject matter of a suit which involves an adjudication of title between the co-owners should be maintained by the grant of an interim order. The spirit behind the aforesaid proposition is that in an eventuality, in an absence of the grant of an interim order, any of the party to the proceedings, if deals with the property or the subject matter of a suit, it would always complicate the controversy and would rather multiply the litigation as a fresh cause would arise against a person, who is introduced by sale in the absence of there being an interim order.

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This spirit of granting the interim protection so as to maintain the status of the property pending litigation has also been propounded by the Hon’ble Apex Court in a judgement reported in 2004 (8) SCC 488, Maharwal Khewaji Trust (Regd.) v. Baldev Dass, wherein in its para 10, the Hon’ble Apex Court has laid down that during the pendency of the litigation, the status of the subject matter ought to be protected so that further complication may be avoided to be multiplied. In that view of the matter, this Court is of the view that the interim order granted earlier by the Court of Assistant Collector, maintaining the Status of the property during the pendency of the declaration of the Suit and the consequential rejection of the Interim Stay Vacation application by the defendants would render the subsequent application, preferred by the newly inducted respondents as to be untenable and if any order is rendered on it contrary to the

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interim order already granted, it would be against the spirit of the initial order granted by the trial Court.

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Looking to the nature of the controversy pertaining to declaration of title under Section 229B and considering the fact that even otherwise also since the declaration is yet to be made of title by the competent court, it would be in the interest of the parties that the parties to the proceedings of Case No. 22 of 2004-05 ‘Shamsher Singh vs. Bishambar & Others’ are directed to maintain the status quo qua the nature and title of the property in question. Simultaneously, the Assistant Collector is also directed to expeditiously decide the proceedings of the Suit in question, which is pending since 2004-05.

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Subject to the above observation, the writ petition stands disposed of.

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(Sharad Kumar Sharma, J.) 04.07.2019

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Pooja

Shamsher Singh and Others v. Bishambar Singh and Others

Case brief

What is this about?

What did the court decide?

Shamsher Singh and Others v. Bishambar Singh and Others

Case brief

What is this about?

What did the court decide?

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