Nem Prakash S/O Late Shri ... vs Vijay Prakash Khandaka S/O Late ...
2022 Latest Caselaw 6832 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

            S.B. Civil First Appeal No. 936/2018

Nem Prakash S/o Late Shri Sardarmal Ji Khandaka
                                                                ----Appellant
                                 Versus
Vijay Prakash Khandaka S/o Late Shri Sardarmal Khandaka
                                                              ----Respondent

Connected With S.B. Civil First Appeal No. 948/2018 Shri Chakreshwari Construction Private Limited

----Appellant Versus Padam Prakash Khandaka S/o Late Shri Sardarmal Ji Khandaka

----Respondent S.B. Civil First Appeal No. 949/2018 Nek Kumar S/o Shri Nem Prakash,

----Appellant Versus Ratan Kumar S/o Shri Om Prakash,

----Respondent S.B. Civil First Appeal No. 950/2018 Sant Kumar S/o Shri Nem Prakash

----Appellant Versus Shri Vijay Prakash S/o Late Shri Sardarmal Ji

----Respondent S.B. Civil First Appeal No. 951/2018 Sant Kumar S/o Shri Nem Prakash

----Appellant Versus Jinesh Kumar Jain Khandaka S/o Shri Vijay Prakash Khandaka

----Respondent S.B. Civil First Appeal No. 952/2018 Sant Kumar S/o Shri Nem Prakash,

----Appellant Versus Shri Dev Prakash S/o Shri Sardarmalji

----Respondent S.B. Civil First Appeal No. 953/2018 Nem Prakash Khandaka S/o Late Shri Sardarmalji Khandaka

(2 of 7) [CFA-936/2018]

----Appellant Versus Shri Kumar Khandaka S/o Late Shri Om Prakash Ji Khandaka,

----Respondent S.B. Civil First Appeal No. 958/2018 Shri Chakreshwari Construction Pvt. Ltd.

----Appellant Versus Vijay Prakash Khandaka S/o Late Shri Sardarmal Khandaka,

----Respondent S.B. Civil First Appeal No. 959/2018 Nek Kumar Khandaka S/o Shri Nem Prakash Khandaka,

----Appellant Versus Vijay Prakash Khandaka S/o Late Shri Sardarmal Ji Khandaka,

----Respondent S.B. Civil First Appeal No. 960/2018 Dev Construction Pvt. Limited

----Appellant Versus Vijay Prakash Khandaka S/o Late Shri Sardarmal Khandaka

----Respondent S.B. Civil First Appeal No. 961/2018 Sant Khandaka Construction Pvt. Ltd.

----Appellant Versus Vijay Prakash Khandaka S/o Late Shri Sardarmal Khandaka

----Respondent S.B. Civil First Appeal No. 963/2018 Nek Kumar S/o Shri Nem Prakash

----Appellant Versus Kuber Kumar Khandaka S/o Late Shri Om Prakash Khandaka

----Respondent S.B. Civil First Appeal No. 964/2018 Sant Kumar S/o Shri Nem Prakash

----Appellant Versus Padam Prakash Khandaka S/o Late Shri Sardarmal Khandaka

----Respondent

(3 of 7) [CFA-936/2018]

S.B. Civil First Appeal No. 972/2018 Rishabh Sena Construction Company Pvt. Ltd.

----Appellant Versus Vijay Prakash Khandaka S/o Late Shri Sardarmal Khandaka

----Respondent S.B. Civil First Appeal No. 973/2018 Sardarmal Khandaka Charitable Trust

----Appellant Versus Vijay Prakash Khandaka S/o Late Shri Sardarmal Khandaka

----Respondent S.B. Civil First Appeal No. 974/2018 Dev Prakash S/o Late Shri Sardarmal Khandaka

----Appellant Versus Vijay Prakash Khandaka S/o Late Shri Sardarmal Khandaka

----Respondent S.B. Civil First Appeal No. 976/2018 Rajratan Financial Corporation

----Appellant Versus Vijay Prakash Khandaka S/o Late Shri Sardarmal Khandaka

----Respondent S.B. Civil First Appeal No. 977/2018 Shri Raj Ratan Private Limited

----Appellant Versus Vijay Prakash Khandaka S/o Late Shri Sardarmal Khandaka

----Respondent

For Appellant(s) : Mr. Saransh Saini Mr. Yash Sharma Mr. L.L. Gupta For Respondent(s) : Mr. R.N. Mathur Sr. Adv. with Mr. Shovit Jhajharia Mr. Kapil Bardhar

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

20/10/2022

(4 of 7) [CFA-936/2018]

1. All first appeals filed against common judgment and decree

dated 16.7.2018 in respect of partition of properties in question,

have been admitted for hearing vide order dated 27.9.2019 and

thereafter, stay applications were disposed of vide order dated

31.10.2019 with consent of both parties, which is undisputedly in

effect and operation.

2. An application (1/2022) under Section 151 CPC has been

filed by respondent No.1 in respect of one property in dispute i.e.

house No.1219, Satyanarain Katra, 4th Floor, Chandani Chowk,

New Delhi. This property has been alleged to be on rent and it has

been stated that applicant-respondent No.1 is paying rent of said

property but when on 18.6.2022, Shri Dinesh Kumar Sharma was

appointed as Commissioner for preparing a report of partition of

this leased property, it was noticed that locks and key of

applicant's-respondent No.1 rented premises have been removed

and replaced. It has been stated that such act is contrary to the

stay order dated 31.10.2019, therefore, the possession of

applicant-respondent No.1 be restored back.

3. Appellants have filed reply to this application stating inter

alia that the said property was in tenancy of appellant No.1 Nem

Prakash and was in his possession only. Respondent No.1, without

any authority made an endeavour to deposit the rent of this

property in his name, which is unwarranted. He submitted that the

rented premises has been vacated and possession has been

handed over to the landlord. Since this property is rented property

and has nothing to do with properties of joint Hindu family,

therefore, taking these facts on record application be dismissed.

4. Having considered rival contentions of both parties, taking

into account the fact that property was admittedly rented and

(5 of 7) [CFA-936/2018]

according to appellants same has been vacated and possession

was delivered to the landlord. It is not possible to adjudicate that

who was in actual possession and who was the actual tenant,

therefore, no order for restoration of possession in favour of

respondent No.1 can be passed. Accordingly, the application

(1/2022) is dismissed .

5. Another application (2/2022) under Section 151 CPC has

been filed by respondent No.1 in respect of property bearing plot

No.E-9, Todarmal Marg, Banipark, Jaipur, stating inter alia that

appellants are trying to demolish the construction of said property,

therefore, appellants be restrained from demolishing the same. It

may be noticed that in the prayer clause no such specific prayer

has been made.

6. Learned Senior Counsel appearing for respondent No.1

humbly prayed to consider the substance of application and the

prayer may be considered in that respect.

7. Appellants have filed reply to this application stating that

property plot No.E-9, Todarmal Marg, Banipark, Jaipur is in actual

and physical possession of appellants and its construction has

already been demolished and new construction is being raised on

the cost and consequences of appellants.

8. Having considered rival contention of both parties, the prayer

to not demolish the construction of plot No.E-9, Todarmal Marg,

Banipark, Jaipur has become infructuous, as such the application

is disposed of accordingly.

9. Another application (3/2022) under Section 151 CPC for

passing appropriate directions, has been filed on behalf of

appellants and by placing on record certain documents and

declarations dated 6.6.2019 (Annexure-C to E), gift deed dated

(6 of 7) [CFA-936/2018]

13.2.2019 (Annexure-F) and sale deed dated 15.1.2022

(Annexure-G), it has been stated that by execution such

documents, the stay order dated 31.10.2019 has been breached,

therefore, appropriate directions be issued not to further breach

the order dated 31.10.2019. An additional prayer has also been

made to decide and dispose of all first appeals finally.

10. Reply to this application has been filed by respondent No.1

and it has been stated that execution of such documents, in any

manner is not breach of the order dated 31.10.2019 and

application has been filed only to harass the respondent No.1,

therefore, the same be dismissed.

11. This Court is not expressing any opinion on merits as to

whether execution of such documents is in breach of stay order

dated 31.10.2019 but it is suffice to observe that since in the stay

order dated 31.10.2019, passed with consent of both parties,

both parties are restrained from alienating the immovable

properties without permission of this Court. No further order in

respect of alienation is required to be passed. As far as prayer for

deciding first appeals finally is concerned, there is no good reason

to give precedence for early hearing of these first appeals,

marching over other first appeals of similar nature of earlier years,

the prayer cannot be accepted at this stage. Accordingly, the

application (3/2022) stand disposed of.

12. Application (5/2022) under Section 151 CPC for passing

appropriate directions has also been filed by appellants in respect

of property bearing Municipal No.1197 situated at Chandani

Chowk Bazaar, New Delhi. It has been stated that this property is

on rent and respondent No.1 is going to sublet the property,

(7 of 7) [CFA-936/2018]

therefore, respondent No.1 be restrained from subletting or

creating any kind of charge over the rented premises.

13. Respondent No.1 has filed reply to this application and has

placed on record the rent deed dated 10.1.1988 to show that this

property is on rent in the name of M/s Rajratan Finance

Corporation, Jaipur through its partners Om Prakash, Nem

Prakash, Padam Prakash, Dev Prakash and Vijay Prakash. It has

been stated in reply that respondent No.1 is not in negotiation to

sublet the said property.

14. Having considered contentions of both parties and in view of

reply filed by respondent No.1, it appears that appellants have

filed this application merely on assumptions. Otherwise also taking

into account the rent deed in respect of tenanted property, prayer

made in the application is preposterous and unwarranted. Hence,

the application (5/2022) is dismissed.

15. Before parting with the order, this Court has noticed that

parties to these appeals are filing unwarranted applications,

therefore, as an abundant precaution parties hereby warned not to

file inappropriate and unwarranted applications else such

application would be dealt with seriously and would entail costs.

16. With aforesaid observations, all applications stand disposed

of.

(SUDESH BANSAL),J

NITIN /57-74

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