Harpal Singh Kohli S/O Late Shri ... vs Shri Jasvant Veer Singh Kohli S/O ...
2022 Latest Caselaw 2824 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                 S.B. Civil First Appeal No. 83/2022

Harpal Singh Kohli S/o Late Shri Gurbaksh Singh Kohli,
                                                                      ----Appellant
                                     Versus
Shri Jasvant Veer Singh Kohli S/o Late Shri Gurbaksh Singh Kohli
& Ors.
                                                                  ----Respondents

For Appellant(s) : Mr. A.K. Bajpai Sr. Adv. assisted by Mr. Nitesh Pareek For Respondent(s) : Mr. R.K. Mathur Sr. Adv. assisted by Mr. Mohd. Adil

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

04/04/2022 Appellant, by way of this first appeal, has assailed the

judgment and decree dated 03.01.2022 passed by Additional

District Judge No.6, Jaipur Metropolitan II whereby his suit for

partition, declaration and permanent injunction has been

dismissed and counter suit of respondent-defendant No.3 for

possession has been decreed.

Counsel for respondent No.3 has raised objection of

maintainability of one appeal.

It is not in dispute that both suits were consolidated before

the trail Court vide order dated 06.02.2018 and thereafter a joint

trial has commenced which culminated into one judgment and

decree impugned herein. Hence one appeal challenging, the

judgment and decree, deciding two consolidated suits, is found

maintainable.

(2 of 3) [CFA-83/2022]

The dispute between parties in relation to immovable

property pertains to partition, possession and permanent

injunction. The first appeal is treated as continuation of suit and

required to be heard on facts and law.

Admit.

Since, respondent No.3 has put in appearance, notices need

not be issued to respondent No.3. Notices be issued to unserved

respondents.

Counsel for appellant submits that respondent No.3 has

initiated execution proceedings of impugned decree for possession

passed in her favour to dispossess the appellant.

Respondent No.3 has filed reply to the stay application and

does not dispute the initiation of execution proceedings. Counsel

for respondent No.3 submits that in facts and circumstances of the

present case, where the ownership of the suit property has been

conferred on respondent No.3 and possession of plaintiff has been

found as trespasser, it is not just and proper to stay the

possession of appellant during pendency of first appeal.

Per contra, counsel for appellant submits that appellant is

residing over the portion of suit property and his dispossession

during pendency of first appeal would cause irreparable injury

rather would be amount to rejection/dismissal of appeal. He

submits that at the most, respondent No.3 decree holder may

apply for mesne profit during pendency of first appeal.

Having heard both parties and considered facts and

circumstances of the present case as also considering nature of

dispute and nature of impugned decree for possession passed

against appellant, it is hereby directed that appellant shall not

(3 of 3) [CFA-83/2022]

dispossess from the property in question during pendency of first

appeal. However, respondent No.3-decree holder shall be at liberty

to move an application for mesne profit claiming from appellant

during pendency of appeal. Further both parties shall maintain

status quo as to alienation and possession of property in question

as it exits today.

With aforesaid observations, the stay application stands

disposed of.

In view of passing order on stay application, application

(No.1/2022) stands disposed of.

(SUDESH BANSAL),J

SACHIN/55

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