Ramswaroop vs Shri Rajendra Kumar Pabri And Ors
2023 Latest Caselaw 3731 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Miscellaneous Appeal No. 1145/2017

Ramswaroop S/o Late Gyannath Meena, R/o 26, Achrol House,
Jacob Road, Civil Lines, Jaipur
                                                                  ----Appellant
                                   Versus
1.     Shri Rajendra Kumar Pabri S/o Late Shri Gyannath
       Meena, R/o P. No. 88, Gali No.2, Ashokpura New
       Sanganer Road, Sodala, Jaipur
                                                           Plaintiff/Respondent

2. Smt. Gulab Devi W/o Late Shri Hanuman Sahay, R/o Purana Ghat Khania Jain Mandir Ke Pass, Meeno Ka Mohalla, Agra Road, Jaipur

3. Smt. Santosh Devi W/o Late Shri Gaurishankar, R/o Meeno Ka Mohalla, Ravan Gate, Chomu, District Jaipur Presently Residing At H.no.2, Ashok Plaza Ke Pass, Near Bus Stand, Chomu, District Jaipur (expired on 24.02.2018) 3/1 Shri Ankit Meena S/o Shri Gori Shankar Meena R/o Plot No.2, Near Ashok Plaza, Meena Ka Mohalla, Bus Stand, Chomu District Jaipur 3/2 Smt. Archana Devi Meena W/o Shri Arun Meena D/o Shri Gori Shankar Meena R/o Plot No.2, Near Ashok Plaza, Meena Ka Mohalla, Bus Stand, Chomu, District Jaipur 3/3 Smt. Jyoti Meena W/o Shri Ramesh Meena D/o Shri Gori Shankar Meena R/o Plot No.2, Ashok Plaza, Meena Ka Mohalla, Bus Stand, Chomu, District Jaipur 3/4 Smt. Dipti Rani Meena W/o Shri Ram Charan Meena D/o Shri Gori Shankar Meena R/o Plot No.2, Near Ashok Plaza, Meena ka Mohalla, Bus Stand, Chomu, District Jaipur 3/5 Smt. Komal Meena W/o Shri Vikas Meena D/o Shri Gori Shankar Meena R/o Plot No.2, Near Ashok Plaza, Meena Ka Mohalla, Bus Stand, Chomu, District Jaipur.

4. Smt. Sushila Devi Meena W/o Shri Shubhe Singh Meena, R/o. P. No. Ifco Chowk, Gurgaon, Haryana Presently Residing At C-2 Second Floor, Siddharth Vaidhyansh Apartment, P.no. 298, Ghitorni, New Delhi.

5. Smt. Gayatri Devi W/o Shri Anil Meena, R/o 11/a,

(2 of 4) [CMA-1145/2017]

Janakpuri West, Near Tihar Jail, New Delhi Presently Residing At R-2-39/a Street No 10, Madanpuri West, Sagarpur, New Delhi-46.

----Defendant Nos.2 to 5/Respondents

For Appellant(s) : Mr. N. M. Maloo, Senior Adv. assisted by Mr. N. K. Singhal, Adv.

For Respondent(s) : Mr. R. K. Daga, Adv.

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Judgment

Date of Judgment 18/08/2023

Instant appeal has been filed by the non-applicant-defendant

No.1-appellant (for short 'the non-applicant') under Section 104

read with Order 43 Rule 1(r) CPC against the order dated

06.02.2017 passed by the Additional District Judge, No.5, Jaipur

Metropolitan, Jaipur (for short 'the trial court'), whereby the

temporary injunction application filed by the applicant-plaintiff

No.1-respondent No.1 (for short 'the applicant') has been allowed.

Learned counsel for the non-applicant submits that the trial

court has committed serious illegality in not recording any finding

regarding prima facie case, balance of convenience and irreparable

loss separately in the impugned order. Learned counsel for the

non-applicant further submits that the non-applicant is owner of

the disputed properties on the basis of registered gift deed and he

is also in possession of the disputed properties. Learned counsel

for the non-applicant also submits that the disputed properties

were in the name of Shri Gyannath, who was father of the non-

applicant and applicant; Sunder Bai, who was the mother of the

non-applicant and applicant and Smt. Gayatri Devi, who is the

(3 of 4) [CMA-1145/2017]

sister of the non-applicant and applicant. They are self acquired

properties of late Gyannath, Sunder Bai and Gayatri Devi. So, they

had right to dispose of them through their Will. So, the finding of

the trial court is based on misconception of law. So, order passed

by the trial court may be set-aside.

Learned counsel for the applicant has opposed the

arguments advanced by learned counsel for the non-applicant and

submitted that the non-applicant had 1/6th share in the disputed

properties. These properties were purchased by father of applicant

as well as non-applicant in the name of his wife Sunder Bai and

his daughter non-applicant No.5-Smt. Gayatri Devi. So, Sunder

Bai and non-applicant No.5-Smt. Gayatri Devi had no right to

execute the gift deed in favour of the non-applicant. The applicant

has challenged the genuineness of these documents. So, the trial

court has rightly came to the conclusion and passed the

temporary injunction in favour of the applicant. Learned counsel

for the applicant further submitted that to avoid complication and

multiplicity of the suit, order of status quo was required and the

trial court rightly restrained the non-applicant to alienate, transfer

or create third party interest in the disputed properties. So, the

appeal being devoid of merit, is liable to be dismissed.

Learned counsel for the applicant has placed reliance upon

the following judgments:- (1) Harish Ishwarbhai Patel Vs.

Jatin Ishwarbhai Patel & Ors. Reported in Supreme (SC)

1089; (2) Representative Aam Janta, Village Berdo Ka Bas

& Anr. Vs. Gramin Vikas Vigyan Samiti reported in 2006(1)

DNJ (Raj.) 421.

(4 of 4) [CMA-1145/2017]

I have considered the arguments advanced by learned

counsel for the non-applicant as well as applicant.

It is an admitted position that the disputed properties were

in the name of Shri Gyannath, Sunder Bai and non-applicant No.5-

Smt. Gayatri Devi. They had gifted these properties by way of gift

deed to the non-applicant and he got transferred the same in his

name. But the trial court has wrongly allowed the temporary

injunction application and restrained the non-applicants to

alienate, transfer or create third party interest in the disputed

properties because the applicant had no possession on disputed

properties. The trial court has not discussed the prima facie case,

balance of convenience and irreparable loss separately. The trial

court has wrongly decided them collectively. So, in my considered

opinion, appeal filed by the non-applicant deserves to be allowed.

Appeal filed by the non-applicant is allowed and the order

dated 06.02.2017 passed by the trial court is quashed and set-

aside.

Pending application(s) if any, stand(s) disposed of.

(NARENDRA SINGH DHADDHA),J

Gourav/206

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