Jagdish Son Of Late Shri Nathuram vs Shri Girdhari Lal Sharma, Son Of ...
2022 Latest Caselaw 3595 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

          S.B. Civil Miscellaneous Appeal No. 447/2022

Jagdish Son Of Late Shri Nathuram, Resident Of Gram Badharna,
Tehsil Amer, District Jaipur.
                                                                 ----Appellant
                                   Versus
1.     Shri Girdhari Lal Sharma, Son of Shri Kanhiyalal Sharma,
       Grandson of Late Shri Shyola Alias Shyonarayan, Resident
       of Badharna, Tehsil Amer, District Jaipur.


                                                       ...Plaintiff/Respondent

2. Kailash Son Of Late Shri Nathuram,

3. Ravi Kumar Son Of Late Shri Nathuram,

4. Ramjilal Son Of Late Shri Nathuram,

5. Smt. Ladi Devi Widow Of Shri Nathuram, All resident Of Badharna, Tehsil Amer, District Jaipur.

6. Smt. Mota Alias Rameshwari D/o Late Shri Nathuram, W/o Shri Manak Chand, Resident Of Gram Khatipura, Tehsil Sanganer, District Jaipur.

7. Smt. Parwati Devi D/o Late Shri Nathuram, Wife Of Shri Purshottam Sharma, Resident Of Gram Moriza, Tehsil Chomu, District Jaipur.

8. Smt. Mohani Devi Widow Of Nanuram S/o Shri Nathuram,

9. Prahalad Kumar Son Of Late Shri Nanuram, Grandson Of Late Shri Nathuram,

10. Vinod Kumar Son Of Late Shri Nanuram Grandson Of Late Shri Nathuram,

11. Menka D/o Late Shri Nanuram, Granddaughter Of Shri Nathuram, All Resident Of Gram Badharna, Tehsil Amer, District Jaipur.

12. Kaluram Son Of Late Shri Om Prakash,

13. Babulal Son Of Late Shri Om Prakash,

14. Bhagwan Sahai Son Of Late Shri Om Prakash,

15. Laxminaryan Son Of Late Shri Om Prakash,

16. Rajendra, Son Of Late Shri Om Prakash,

(2 of 9) [CMA-447/2022]

17. Ramkishore Son Of Late Shri Om Prakash,

18. Surendra Son Of Late Shri Om Prakash, All Resident Of Badharna, Tehsil Amer, District Jaipur.

19. Smt. Badami Devi D/o Late Shri Om Prakash, Wife Of Shri Girdharilal, Resident Of Gram Vimalpura, Tehsil Chomu, District Jaipur.

20. Smt. Mangli Devi Widow Of Shyola Alias Shyonarayan, "Deceased While Application",

21. Ramnaryan Son Of Late Shri Shyola Alias Shyonarayan,

22. Kanhiyalal Son Of Late Shri Shyola Alias Shyonarayan,

23. Mohanlal Son Of Late Shri Shyola Alias Shyonarayan,

24. Sharvanlal Son Of Late Shri Shyola Alias Shyonarayan,

25. Shriram Son Of Late Shri Shyola Alias Shyonarayan, All Resident Of Gram Badarna, Tehsil Amer, District Jaipur.

26. Smt. Prabhati Devi D/o Late Shri Shyola, Wife Of Shri Gopal lal, Resident Of Gram Siwar, Tehsil And District Jaipur.

27. Smt. Nanchi Devi, D/o Late Shri Shyola, Wife Of Shri Prabhunaryan, Resident Of Siwar, Tehsil And District Jaipur.

28. Smt. Kamli Devi D/o Late Shri Shyola Wife Of Shri Ramlal, Resident Of Gram Hardatpura, Tehsil Amer, District Jaipur.

29. Smt. Shanti Devi D/o Late Shri Shyola, Wife Of Ramswaroop, Resident Of Gram Gardatpura, Tehsil Amer, District Jaipur.

30. Smt. Meera Devi D/o Late Shri Shyola, Wife Of Shri Dinesh Sharma, Resident Of Gram Luniavas, Tehsil Sanganer, District Jaipur.

31. State Of Rajasthan, Through Tehsildar, Amer, District Jaipur.

32. Deputy Registrar, Amer, Tehsil Amer, District Jaipur.

33. Mahaveer Yadav Son of Rameshwar Yadav, Resident Of Plot No.25, Madan Vihar, Dadi Phatak, Murlipura, Jaipur. Kathik Mantri, Vijaypura Grah Nirman Sahakari Samiti Limited, Jaipur.

                                                                  ----Respondents


For Appellant(s)          :     Mr. Rajendra Prasad, Sr. Advocate
                                with Mr. Abhishek Pareek, Advocate

                                           (3 of 9)               [CMA-447/2022]


For Respondent(s)         :     Mr. Anil Mehta, Sr. Advocate with Mr.
                                Harsh Sharma, Advocate and Mr.
                                Namo Narayan Sharma, Advocate



            HON'BLE MR. JUSTICE PRAKASH GUPTA

                                 Judgment

07/05/2022

This Civil Misc. Appeal has been filed by the appellant-

defendant no.1 (for short, 'the defendant') against the order dated

10.2.2022 passed by Addl. District Judge No.4, Jaipur District,

Jaipur in Civil Misc. Case No. 16/2019 (80/2018), whereby the

application for temporary injunction filed by the respondent no.1-

plaintiff-applicant (for short, 'the plaintiff') has been allowed.

Facts of the case are that the plaintiff filed a suit for

declaration, cancellation of the decree and permanent injunction

against the defendants. Alongwith the suit, an application for

temporary injunction was also filed, which has been allowed by

the trial court vide its order dated 10.2.2022. Hence, the present

Civil Misc. Appeal has been filed.

Learned Sr. Counsel appearing for the defendant

submits that the plaintiff Girdhari Lal is the grand son of Shyola

@ Shyonarayan. He further submits that Ladu (great-grand father

of plaintiff) had three sons Nathu, Om Prakash and Shyola @

Shyonarayan. Ladu was the khatedar of 1/2 part of the suit land

and 1/2 part of the suit land was purchased by Nathu, Om

Prakash and Shyola @ Shyonarayan jointly from Gopal and

Govind S/o Ram Kishan. In the year 1994, a revenue suit for

division of 1/2 share in joint agricultural holdings of 37 bigha 12

biswa was filed by Nathu and Om Prakash against Shyola @

Shyonarayan, which was decreed by Assistant Collector (First),

(4 of 9) [CMA-447/2022]

Jaipur vide judgment dated 3.6.1995. An appeal was filed against

the said judgment before the Revenue Appellate Authority, the

same was allowed and accordingly matter was remanded to the

court below. Thereafter the Asstt. Collector (First), Jaipur vide its

judgment dated 22.2.2001 again decreed the suit. The said

judgment dated 22.2.2001 was challenged in appeal before the

Revenue Appellate Authority, which was dismissed vide judgment

dated 30.8.2005. Against the said judgment dated 30.8.2005

passed by the Revenue Appellate Authority, appeal was filed

before the Board of Revenue and during the pendency of that

appeal, plaintiff filed the present civil suit for declaration,

cancellation of the decree, which was passed in the revenue suit,

and permanent injunction. Subsequently, the appeal filed before

the Board of Revenue was dismissed vide judgment dated

19.3.2020. He further submits that as per Section 8 of the Hindu

Succession Act, the plaintiff being the grand son of Shyola @

Shyonarayan had no right to file the present suit claiming partition

of the suit land during the life time of his father. The plaintiff

alleged that the decree dated 22.2.2021 passed by the Asstt.

Collector (First), Jaipur was obtained by fraud and collusion, but

none of the party of the said revenue suit has challenged the said

decree alleging the same to have been obtained by fraud and

collusion. Rather the decree dated 22.2.2021 was passed on

merits after recording evidence of both parties and after

considering material on record. He further submits that even if

the decree dated 22.2.2021 passed by Asstt. Collector (First),

Jaipur is set-aside, relief of partition of agricultural land cannot be

granted by the Civil Court in view of Section 53 of the

Rajasthan Tenancy Act, but the application for

(5 of 9) [CMA-447/2022]

temporary injunction filed by the plaintiff has been allowed by the

trial court without considering the aforesaid facts.

He further submits that even the trial court has not

considered the important fact that the family settlement took

place in the year 1980 between Shyola, Nathu and Om Prakash,

whereas the suit was filed by the plaintiff Girdhari Lal Sharma in

the year 2018 i.e. after 38 years, despite the fact that the other

family members including Shyola @ Shyonarayan and Kanhaiya

Lal Sharma (father of the plaintiff) are not disputing the same.

Lastly, it has been submitted that the judgment and decree dated

22.2.2021 passed by Asstt. Collector (First), Jaipur was merged

with the subsequent judgments passed by the Revenue Appellate

Authority and Board of Revenue, but both the aforesaid judgments

and decrees passed by the appellate courts have not been

challenged by the plaintiff in the present suit. Thus, the impugned

order dated 10.2.2022 passed by the trial court is liable to be set-

aside.

On the other hand, learned Sr. Counsel appearing for

the plaintiff submits that the application filed by the defendant

under Order 7 Rule 11 CPC was dismissed by the trial court vide

order dated 31.7.2018.

He further submits that he has filed an application

under Order 41 Rule 27 CPC for taking documents on record, from

which it would be clear that Ladu had admitted in his written

statement that the suit property was self acquired property of

Shyola @ Shyonarayan. He has defended the impugned order and

stated the same to be just and proper and submits that the trial

court while deciding the application for temporary injunction, is

not required to give finding upon disputed questions. In support of

(6 of 9) [CMA-447/2022]

his submissions, he has placed reliance on the judgment passed

by the Coordinate Bench of this Court at Principal Seat, Jodhpur in

S.B. Civil Misc. Appeal No. 1291/2009 - Kera Ram & Anrother

Versus Mohan Lal & Ors.; reported in 2010 (1) WLC Raj. 343

In rejoinder, learned Sr. Counsel submits that the scope

of application under Order 7 Rule 11 CPC is quite different than

the application under Order 39 Rule 1 and 2 CPC. While deciding

the application under Order 7 Rule 11 CPC, only the averments

made in the plaint are to be considered, but at the time of

deciding the application for temporary injunction, averments made

in the application for temporary injunction, reply to the

application, documents and the material available on record are

required to be considered, therefore, the order dated 31.7.2018

dismissing the application under Order 7 Rule 11 CPC does not

have any adverse effect on the merits of the case.

Heard. Considered.

The trial court while allowing the application under

Order 39 Rule 1 and 2 CPC and finding the prima-facie case in

favour of the plaintiff observed as under:-

"bl laca/k esa jktLo U;k;ky; esa izdj.k ntZ gksdj fu.kZ; o fMdzh ikfjr gksuk Hkh vfHkys[k ij gS vkSj leFkZu esa nLrkostkr Hkh is'k gq, gSa rFkk okn Hkh ?kks"k.kk] vikLr fd;s tkus fu.kZ;] fMdzh] rdklek o LFkk;h fu"ks/kkKk dk izkFkhZ dh vksj ls izLrqr gS A i{kdkjku ds e/; eq[; :i ls oknxzLr lEifRr mudh iSr`d lEifRr gksuk rFkk mldk caVokjkukek fy[kk tkuk rFkk jktLo U;k;ky; esa mDr oknxzLr Hkwfe ds laca/k esa ikfjr fu.kZ; fMdzh dh fof/kd fLFkfr rFkk ';ksyk }kjk lEifRr Lo;a dh vk; vftZr djus tSls iz'u izdj.k esa fo|eku gS] fdarq mDr lHkh rF; ewy okn esa lk{; ys[kc) fd;s tkus ds mijkUr gh r; fd;s tk ldsaxs A ,slh fLFkfr esa bl Lrj ij vLFkk;h fu"ks/kkKk dk izkFkZuk i= vLohdkj dj fn;k tkrk gS rks

(7 of 9) [CMA-447/2022]

i{kdkjku ds e/; okn ckgqY;rk c<sxh] tgka rd vizkFkhZ dze&1 o 33 ds fo}ku vf/koDrk }kjk izLrqr lEekuh; U;kf;d n`"VkUrksa dk iz'u gS mu lHkh lEekuh; U;kf;d n`"VkUrksa esa izfrikfnr fl)kar vLFkk;h fu"ks/kkKk ds izkFkZuk i= ds fuLrkj.k ds le; okn ds egRoiw.kZ mn~Hkwr iz'uksa dk lekos'k gksus ls bl LVst ij vizkFkhZx.k dks dksbZ lgk;rk ugha igqapkrs gSa A"

In the case of Smt. Vimla Devi versus Jang Bahadur

reported in RLW 1977 page 327, the Coordinate Bench of this

Court has held as under:

"Another well established principle while disposing of the application under Order 39 Rules 1 and 2 CPC is that when the Court while dealing with the case for grant of temporary injunction decides the question of prima facie case, it should apply its judicial mind to the materials which are placed on the record and if it does not do so, then it commits illegality in the exercise of jurisdiction and in that case, the High Court is competent to interfere.

(Emphasis supplied by me)

In the case of Cosmos Buildwell Pvt. Ltd. (M/s.)

Versus Laxman Singh & Ors. reported in 2010 (3) RLW 2761

(Raj.), the Coordinate Bench of this Court has held that when

Trial Court not considered the documents placed before it, the

same can be termed as non-speaking order.

In the case of Vellakutty Versus Karthyavani

reported in AIR 1968 Kerala 179, the Kerala High Court has held

as under:

"Every piece of evidence produced by either party has to be taken into consideration in deciding the existence of a prima facie case so justify issuance of a temporary injunction".

(8 of 9) [CMA-447/2022]

In the case of Vadivel Mudaliar and another Versus

Pachianna Gounder reported in AIR 1974 Madras 87, the

Madras High Court has observed as under:-

"In the matter of granting temporary injunction it is the duty of the Court to take into consideration the affidavits and the relevant documents before it records a finding. Taking into consideration the documents does not mean merely referring to the same in the judgment; but there must be some discussion about them before any conclusion is arrived at. Unfortunately, the Courts below have not adverted to these documents, though not in detail at least prima facie, except referring them in their judgments. This has completely vitiated the orders of the Courts below, which, in my opinion is a material irregularity and has to be taken that the Courts below have not exercised their jurisdiction vested in them by law."

(Emphasis supplied by me)

The Coordinate Bench of this Court at Principal Seat

Jodhpur in the case of Kera Ram (supra) held as under:

"If a suit is filed before the civil court and alongwith suit an application for temporary injunction is filed under Order 39 Rule 1 & 2 CPC, in that event while deciding such application, of course, aforesaid three points are important and required to be examined; but, for the purpose of forming opinion upon prima facie case, the Court is required to apply its mind to the pleadings of the plaint as well as reply, if filed in the suit or to the application filed under Order 39 Rules 1 & 2, CPC. At the interim stage, formation of opinion and satisfaction is essential condition. Of course, facts are required to be observed in the order but, at that stage, finding is not required to be given.

Even from the above observations of the Coordinate

Bench of this Court also, it is clear that at the interim stage,

formation of opinion and satisfaction is essential.

(9 of 9) [CMA-447/2022]

From a perusal of the findings of the trial court, as

stated above, it is clear that affidavits, relevant material and the

documents available on record were not taken into consideration

by the trial court while deciding the application for temporary

injunction. Hence, the order dated 10.2.2022 passed by the trial

court is arbitrary, capricious and perverse. Therefore, without

going into the merits and demerits of case, the impugned order

dated 10.2.2022 passed by the Trial Court is liable to be quashed

and set-aside.

So far the application under Order 41 Rule 27 CPC is

concerned, since there is no pleading in the suit as also in the

application for temporary injunction filed by plaintiff in relation to

the documents annexed with the application, but without

amendment in the pleadings, they cannot be considered.

Accordingly, the appeal filed by the appellant-defendant

is allowed; the order dated 10.2.2022 passed by the trial court is

quashed and set-aside and the matter is remanded to the court

below with a direction to decide the application for temporary

injunction filed by the plaintiff afresh, in accordance with law, after

due consideration of material available on record.

Both the parties are directed to appear before the Trial

Court on 18.5.2022 and thereafter the trial court shall decide the

application for temporary injunction on or before 27.5.2022.

Consequent upon the disposal of the appeal, stay

application also stands disposed of accordingly.

(PRAKASH GUPTA),J

DK/56

Powered by TCPDF (www.tcpdf.org)