Rajasthan High Court
Kunj Bihari vs Shyoji Through Lrs And Others on 7 March, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 574/2011
Kunj Bihari
----Appellant
Versus
Shyoji Through Lrs And Others
----Respondents
For Appellant(s) : Mr. Vinod Kumar Tamoliya with
Mr. Vishnu Bohra
For Respondent(s) : Ms. Neetu Singh Choudhary with
Mr. Manju Joshi
Mr. Fahad Hasan
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
07/03/2022
This first appeal has been filed by appellant-plaintiff
(hereinafter referred as plaintiff) against dismissal of civil suit
No.135/2005 vide judgment and decree dated 24.08.2011 passed
by Additional District Judge, (Fast Track), Sawaimadhopur for
declaration, specific performance and permanent injunction.
The plaintiff claims for an agreement to sale dated
16.05.1991 by the respondent-defendants (hereinafter referred as
defendants) Nos.1 and 2 namely, Shri Shyoji and Shri Haribhajan
in relation to their Khatedari land of Khasra No.592/1740
measuring 10 bigha, 12 biswa at village Alanpur for its part of
area as described in the plaint.
The plaintiffs filed an application (I.A. No.1/2019) under
Order 22 Rule 10 CPC claiming that defendant No.3-Shri Gulab
Singh sold a part of such property to one Shri Bhupendra Singh
through agreement to sale dated 21.03.2016 and transferred
(2 of 4) [CFA-574/2011]
possession as well, therefore, the transferee-Shri Bhupendra
Singh also be impleaded as party. Even if during pendency of
appeal, any agreement to sale has been executed by the
defendant No.3 in favour of any other party including the suit
property, the same does not adversely affect the right of appellant
to pursue his appeal on merits. Accordingly, the application is
dismissed.
Applications (I.A. No.2/2019, 3/2021 & 5/2021) have been
filed under Section 151 CPC seeking restoration of original position
of the disputed land. It has been alleged that some construction
has been raised over the suit land during pendency of this appeal,
in utter disregard to the order of status quo passed by this Court
on 26.09.2011. Therefore, the construction pendente lite be
ordered to be demolished and original position of suit property as
existed on the date of filing of appeal be restored. Since, the
appellant-plaintiff's suit for specific performance has been
dismissed by the trial court and the right of plaintiff over the suit
land is yet to be adjudicated, therefore, the plaintiff is not entitled
to get demolition of any construction on suit land raised during
pendency of appeal. However, it is hereby observed that in case
plaintiff would succeed in his appeal, his rights to obtain fruits of
decree would not be affected by any action occurred pendente lite.
With the aforesaid observations, the applications stand
disposed of.
Application (I.A. No.3/2019) has been filed by the plaintiff
under Order 22 Rule 10 read with Section 151 CPC alleging inter
alia that plaintiff has agreement in his favour to purchase a plot
measuring 2172 Sq. Mtr. During pendency of suit, the defendant
No.1 Shyoji surrendered a part of disputed plot measuring 35' X
(3 of 4) [CFA-574/2011]
90' U/s 90 (B) (3) to the competent authorities and said part of
land has been allotted to one Shri Anil Jaisawal on 15.09.2003. It
has been prayed that since part of land transferred pandente lite
to Anil Jaisawal he be also impleaded as party respondent. The
application has been filed after a delay of 18 years at the stage of
first appeal without any explanation. For such inordinate and
unexplained delay, the application is not liable to be succeeded
and the same is dismissed.
Application (I.A. No.1/2021) filed by the appellant under
Order 26 Rule 9 CPC for local inspection. Learned counsel submits
that the concerned SHO was directed to submit a factual report
relating to actual position of disputed site, who has submitted his
report on record.
In view of above, no order is required to be passed on the
application and accordingly, the same is disposed of.
Application (I.A. No.2/2021) has been filed by the plaintiff
under Section 151 CPC seeking police help to maintain order of
status quo at site.
No sufficient material is available on record to provide police
help in facts and circumstances of the present case to the
appellant.
Thus, for want of details and necessary particulars, the
application is not liable to be allowed and accordingly dismissed.
Application (I.A. No.4/2021) has been filed by the plaintiff
under order 22 Rule 10 CPC stating that one person Shri
Bhupendra Singh through his power of attorney holder has sold a
part of suit property to Smt. Jyoti Senger through sale deed dated
14.02.2020.
(4 of 4) [CFA-574/2011]
It is not clear as to how Bhupendra Singh got any right to
execute this sale deed. Since Bhupendra Singh himself is not party
in the present appeal, no transferee on the behest of Bhupendra
Singh can be allowed to be made party. Otherwise also, the sale
deed dated 14.02.2020 being pendente lite does not adversely
affect rights of plaintiff to pursue to this appeal on merits for the
purpose of specific performance.
Accordingly, the application sands disposed of.
Thus, all pending applications stand disposed of.
(SUDESH BANSAL),J
TN/49
Powered by TCPDF (www.tcpdf.org)
