Rajasthan High Court
Jagdish Son Of Late Shri Nathuram vs Girdhari Lal Sharma Son Of Shri ... on 13 September, 2023
Bench: Narendra Singh Dhaddha
[2023:RJ-JP:21989]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1042/2023
Jagdish Son Of Late Shri Nathuram, Aged About 65 Years,
Resident Of Gram Badharna, Tehsil Amer, District Jaipur.
----Appellant
Versus
1. Girdhari Lal Sharma Son Of Shri Kanhaiyalal Sharma,
Grandson Of Late Shri Shyola Alias Shyonarayan,
Resident Of Badharana, Tehsil Amer, District Jaipur.
2. Kailash Son Of Late Shri Nathuram, Resident Of
Badharana, Tehsil Amer, District Jaipur.
3. Ravi Kumar Son Of Late Shri Nathuram, Resident Of
Badharana, Tehsil Amer, District Jaipur.
4. Ramjilal Son Of Late Shri Nathuram, Resident Of
Badharana, Tehsil Amer, District Jaipur.
5. Smt. Ladi Devi Widow Of Nathuram, Resident Of
Badharana, Tehsil Amer, District Jaipur.
6. Smt. Mota Alias Rameshwari D/o Late Shri Nathuram,
W/o Shri Manakchand, Resident Of Village Khatipura,
Tehsil Sanaganer, District Jaipur.
7. Smt. Parwati Devi D/o Late Shri Nathuram, Wife Of Shri
Purshottam Sharma, Resident Of Village Moriza, Tehsil
Chomu, District Jaipur.
8. Smt. Mohani Devi Widow Of Nanuram S/o Late Shri
Nathuram, R/o-
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 Late Shri
Nathuram, Resident Of Village Badharana, Tehsil Amer,
District Jaipur.
12. Kaluram Son Of Late Om Prakash, Resident Of Village
Badharana, Tehsil Amer, District Jaipur.
13. Babulal Son Of Late Om Prakash, Resident Of Village
Badharana, Tehsil Amer, District Jaipur.
14. Bhagwan Sahai Son Of Late Om Prakash, Resident Of
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Village Badharana, Tehsil Amer, District Jaipur.
15. Laxminarayan Son Of Late Om Prakash, Resident Of
Village Badharana, Tehsil Amer, District Jaipur.
16. Rajendra Son Of Late Om Prakash, Resident Of Village
Badharana, Tehsil Amer, District Jaipur.
17. Ramkishore Son Of Late Om Prakash, Resident Of Village
Badharana, Tehsil Amer, District Jaipur.
18. Surendra Son Of Late Om Prakash, Resident Of Village
Badharana, Tehsil Amer, District Jaipur.
19. Smt. Badami Devi D/o Late Shri Om Prakash, Wife Of Shri
Girdharilal, Resident Of Village Vimalpura, Tehsil Chomu,
District Jaipur.
20. Smt. Mangli Devi Widow Of Shyola Alias Shyonarayan,
Deceased While Application.
21. Ramnarayan Son Of Late Shri Shyola Alias Shyonarayan,
Resident Of Village Badarana, Tehsil Amer, District Jaipur.
22. Kanhaiyalal Son Of Late Shri Shyola Alias Shyonarayan,
Resident Of Village Badarana, Tehsil Amer, District Jaipur.
23. Mohanlal Son Of Late Shri Shyola Alias Shyonarayan,
Resident Of Village Badarana, Tehsil Amer, District Jaipur.
24. Sharvanlal Son Of Late Shri Shyola Alias Shyonarayan,
Resident Of Village Badarana, Tehsil Amer, District Jaipur.
25. Shriram Son Of Late Shri Shyola Alias Shyonarayan,
Resident Of Village Badarana, Tehsil Amer, District Jaipur.
26. Smt. Prabhati Devi D/o Late Shri Shyola , Wife Of Shri
Gopalal, Resident Of Village Sinwar, Tehsil And District
Jaipur.
27. Smt. Nanchi Devi D/o Shri Shyola, Wife Of Shri
Prabhunaryan, Resident Of Village Sinwar, Tehsil And
District Jaipur.
28. Smt. Kamli Devi D/o Late Shri Shyola Wife Of Shri
Ramlal, Resident Of Village Hardatpura, Tehsil Amer,
District Jaipur.
29. Smt. Shanti Devi D/o Late Shri Shyola, Wife Of Shree
Ramswaroop, Resident Of Village Hardatpura, Tehsil Amer,
District Jaipur.
30. Smt. Meera Devi D/o Late Shri Shyola, Wife Of Shri
Dinesh Sharma, Resident Of Village Luniavas, Tehsil
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Sanganer, District Jaipur.
31. State Of Rajasthan, Through Tehsildar, Amer, Tehsil Amer
District Jaipur.
32. Deputy Registrar, Amer, Tehsil Amer, District Jaipur.
33. Mahaveer Yadav Son Of Rameshwar Parsad Yadav,
Resident Of Plot No. 25, Madan Vihar, Dadi Ka Phatak,
Murlipura, Jaipur. Kathit Mantri, Vijaypura Grah Nirman
Sahakari Samiti Limited, Jaipur.
34. Tarachand Saini S/o Sohan Lal Saini, Resident Of
Palneeche Ki Dhani, Kasba Amer, Tehsil Amer District
Jaipur.
----Respondents
For Appellant(s) : Mr. Rajendra Prasad, Senior Counsel
with Mr. Abhishek Pareek, Adv.
For Respondent(s) : Mr. A. K. Sharma, Senior Counsel with
Mr. S. K. Kaushik, Adv.
Mr. Harsh Sharma, Adv.
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
DATE OF JUDGMENT 13/09/2023
Instant appeal has been filed by the appellant-non-applicant
(for short 'the non-applicant') against the order dated 29.04.2023
passed by Additional District Judge No.4, Jaipur District, Jaipur in
Civil Misc. Case No.16/2019 (49/2018, 80/2018), whereby the
temporary injunction filed by the respondent No.1-applicant (for
short 'the applicant') has been allowed.
Learned senior counsel for the non-applicant submits that
the trial court wrongly allowed the temporary injunction
application filed by the applicant. Learned senior counsel for the
non-applicant also submits that disputed property was purchased
in the name of Shyola on account of eldest son of the family. That
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property was purchased from joint Hindu family income and not
from personal income of Shyola. Learned senior counsel for the
non-applicant also submits that three sons of the Ladu Ram had
executed the partition deed dated 11.10.1980 in which they
clearly stated that the disputed property was joint Hindu family
property. They filed a suit for partition before the Revenue Court.
Revenue Court passed the decree on 03.06.1995. The said decree
was challenged before the Revenue Appellate Authority and
Revenue Appellate Authority remanded the matter to Sub
Divisional Officer, Amer to decide the matter afresh vide order
dated 13.11.1996. After that, SDO, Amer passed the decree on
22.02.2001. The said decree was also challenged before the
Revenue Appellate Authority. Revenue Appellate Authority
dismissed the appeal on 30.08.2005. Order dated 30.08.2005
passed by Revenue Appellate Authority was further challenged
before the Board of Revenue and the said appeal was also
dismissed on 19.03.2020. The said order was not challenged
before High Court. Learned senior counsel for the non-applicant
also submits that the trial court while deciding the prima facie
case wrongly came to the conclusion that questions whether the
said partition deed was valid or not and being unregistered is
admissible in evidence or not and whether disputed property was
purchased by Shyola from his personal income or not, would be
decided after taking the evidence.
Learned senior counsel for the non-applicant also submits
that Shyola himself admitted this fact in the partition deed as well
as before the Revenue Court that disputed property was joint
Hindu family property.
[2023:RJ-JP:21989] (5 of 8) [CMA-1042/2023]
Learned senior counsel for the non-applicant also submits
that Kanhaiyalal father of applicant had not challenged the said
order. Learned senior counsel for the non-applicant also submits
that 10 Bigha land was acquired by National Highway Authority
out of disputed land for which compensation was awarded and
compensation was received by three sons of Ladu Ram in equal
shares.
Learned senior counsel for the non-applicant also submits
that three sons of Shyola had sold their share of land to Vijaypura
Grah Nirman Sahkari Samiti considering the fact that Shyola had
1/3rd share in the disputed land. Learned senior counsel for the
non-applicant also submits that applicant also got the electricity
connection in their Godown by submitting Jamabandi in the year
2016.
Learned senior counsel for the non-applicant also submits
that disputed land was partitioned 38 years ago. Instead of
challenging the order of the Revenue Board, applicant challenged
the decree dated 22.02.2001 passed by the SDO on wrong facts.
There is no evidence that said decree was obtained by way of
fraud or misrepresentation. Learned senior counsel for the non-
applicant also submits that suit for partition was also pending
before the Additional Collector, Amer regarding same land.
Learned senior counsel for the non-applicant also submits that the
trial court had not considered these facts while deciding the
temporary injunction application. So, order of the trial court be set
aside.
Learned senior counsel for the non-applicant has placed
reliance upon the following judgments: (1) Dalpat Kumar & Anr.
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Vs. Prahlad Singh & Ors. reported in AIR 1993 SC 276 and (2)
Jagdish Vs. Girdhari Lal Sharma & Ors. in S.B. Civil Misc.
Appeal No.447/2022 decided on 07.05.2022.
Learned senior counsel for the applicant has opposed the
arguments advanced by learned senior counsel for the non-
applicant and submitted that the trial court rightly considered the
temporary injunction application filed by the applicant because it
is an admitted position that disputed land was purchased in the
name of Shyola because Shyola had paid sale consideration from
his personal income and revenue record also confirmed these facts
but due to illiteracy, non-applicants and other hatched a
conspiracy and obtained the decree by fraud. Civil Court had
jurisdiction to cancel the decree passed by the SDO. Learned
senior counsel for the applicant also submitted that whether
decree obtained by fraud and so-called partition deed is valid or
not, are triable issues. So, the trial court rightly ordered to
maintain status quo over the disputed property. So, appeal be
dismissed.
Learned senior counsel for the applicant has placed reliance
upon the following judgments : (1) Roshan Singh & Ors. Vs. in
Zile Singh & Ors. reported in AIR 1988 SC 881; (2) Horil Vs.
Keshav & Anr. reported in 2012 (2) CDR 386 (SC); (3) Kera
Ram & Anr. Vs. Mohan Lal & Ors. in S.B. Civil Misc. Appeal
No.1291/2009 decided on 14.10.2009; (4) Maharwal
Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass in Civil
Appeal No.6792/2004 decided on 15.10.2004; (5) M/s
Gujarat Bottling Co. Ltd. & Ors. Vs. Coca Cola Company &
Ors. in Civil Apepals Nos.6839-6840 of 1995 decided on
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04.08.1995; (6) Rudresh Jhunjhunwala & Ors. Vs. Satish
Kumar & Ors. in S.B. Civil Misc. Appeal No.136/2022
decided on 03.02.2022 and (7) M/s Bombay Plaster
Industries & Ors. Vs. M/s Jagdamba Plaster & Ors. in S.B.
Civil Misc. Appeal Nos.1097 and 1096 of 2017 decided on
03.01.2018.
I have considered the arguments advanced by learned senior
counsel for the non-applicant as well as learned senior counsel for
the applicant.
It is an admitted position that disputed land was in the name
of Shyola but as per the averments of the non-applicant, this land
was purchased from joint Hindu family income in the name of
Shyola because Shyola was the eldest son of the family. So, it was
joint Hindu family property. Settlement was arrived and a partition
deed was executed on 11.10.1980. On account of partition deed,
revenue suit was filed and said Revenue suit was decreed ex-parte
on 03.06.1995. The said decree was challenged before the
Revenue Appellate Authority and Revenue Appellate Authority
remanded the matter on 13.11.1996 to decide the matter afresh.
After that, SDO, Amer passed the decree on 22.02.2001 after
taking evidence of the parties. The said decree was challenged
before the Revenue Appellate Authority and Revenue Appellate
Authority dismissed the appeal on 30.08.2005. Order dated
30.08.2005 of the Revenue Appellate Authority was further
challenged before Board of Revenue and Board of Revenue
dismissed the appeal on 19.03.2020. The said order was not
challenged before High Court. Applicant had challenged the decree
passed by the Revenue Court after 38 years. Father of applicant is
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alive and he had not challenged the said order. Partition suit
regarding this land is also pending before the Additional Collector,
Amer. Instead of challenging the order of Board of Revenue,
applicant had challenged the decree dated 22.02.2001 passed by
the Additional Collector, Amer. 10 Bigha land out of disputed land
was acquired by the National Highway Authority in which sons of
Ladu Ram had accepted the compensation by considering their
1/3rd share of land. Three sons of Shyola- Mohan lal, Shriram,
Sharvanlal had sold their land to Vijaypura Grah Nirman Sahakari
Samiti Limited by assuming the fact that their father had 1/3rd
share in the disputed land. Applicant had taken electricity
connection in his Godown by submitting the Jamabandi of this
land. The trial court had not considered these facts. So, in my
considered opinion, the trial court wrongly passed the order to
maintain status quo over the disputed land. So, order of the trial
court deserves to be set aside.
The appeal filed by the non-applicant is allowed. The order of
the trial court dated 29.04.2023 is set aside.
(NARENDRA SINGH DHADDHA),J
Jatin /157
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