Rajasthan High Court - Jodhpur

Magan vs Shri Ramji on 6 September, 2023

Bench: Madan Gopal Vyas

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1096/2021

Magan S/o Ramji Patel, Aged About 47 Years, Ambasa, Tehsil Jhadol (Phalasiya), District Udaipur

----Appellant Versus

1. Shri Ramji S/o Daya Patel, Aged About 69 Years, Ambasa, Tehsil Jhadol (Phalasiya), District Udaipur

2. Vinod Kumar S/o Banshilal Patel, Aged About 30 Years, 100 Arbuda Nagar, Umiya Parivar, Valasana Idar, Tehsil Idar, District Sabarkantha (Gujarat)

3. Rekhaben W/o Rajendra Kumar Patel, Parsoda, Tehsil Vijay Nagar, District Sabarkantha (Gujarat)

4. Rakesh S/o Ramji Patel, Ambasa, Tehsil Jhadol (Phalasiya), District Udaipur

5. State Of Rajasthan-State, Tehsildar (Bhumidhari), Jhadol, District Udaipur

6. The Sub-Registrar, Phalasiya, Tehsil Jhadol, District Udaipur

----Respondents

For Appellant(s) : Mr. Jhamaklal Nagda For Respondent(s) : Ms. Alka Pandey Mr. Sajjan Singh Rajpurohit

HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Judgment

DATE OF JUDGMENT 06/09/2023

The present civil misc. appeal under Order 43 Rule 1(r) read

with Section 104 of the Code of Civil Procedure has been filed by

the plaintiff-appellant against the order dated 11.8.2021 passed

by the learned Addl. District Judge No.4, Udaipur in Civil Misc.

Case No.10/2021 (CIS No.59/2021) whereby the learned trial

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court rejected the application filed by the plaintiff-appellant under

Order 39 Rule 1 and 2 read with Section 151 of the CPC seeking

temporary injunction.

2. Brief facts giving rise to the present appeal are that the

appellant-plaintiff claims that agricultural land bearing Aaraji

number 889 and 1547 admeasuring 2.5300 hectares situated in

revenue village Ambasa, Tehsil Jhadol (Phalasiya), District Udaipur

was purchased in the name of respondent no. 1 as a joint family

property in which the plaintiff-appellant contributed money. A

family settlement took place and land bearing Aaraji number 889

admeasuring 1.2800 hectares was kept for the appellant.

Subsequently, a family partition took place in which the land

bearing Araji no. 889 admeasuring 1.2800 hectares and a house

built thereupon came under the appellant's share. However, the

respondent no. 1 sold the said land to respondent nos. 2 and 3.

The plaintiff-appellant preferred a suit for cancellation of sale deed

and grant of perpetual injunction along with an application for

temporary injunction restraining the respondents-defendants from

alienating/transferring the suit property and maintaining the

status quo.

3. Learned counsel for the plaintiff-appellant submits that the

appellant is the son of the respondent no.1 and was residing at

Kuwait at the time of purchase of the agricultural land bearing

Aaraji Nos.889 and 1547 ad measuring 2.5300 hectares at

revenue village Ambasa, Tehsil Jhadol (Phalasiya), District Udaipur.

The property was purchased in the name of respondent no. 1 as a

joint family property for which the appellant has also contributed

an initial sum of Rs.2,00,000/-. Thereafter, from time to time, the

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appellant sent money to respondent no. 1 on demand from Kuwait

for construction of house upon the said property and for other

expenses. Therefore, the property in question is a joint family

property in which the plaintiff-appellant has a share. A dispute

arose between the appellant and the respondent no.1 with respect

to the suit property, which was settled on intervention of the

eminent persons of the community and on 05.12.2010, a family

partition took place in which the plaintiff-appellant was given

possession of land bearing Aaraji No.889 ad measuring 1.2800

hectares alongwith a house constructed thereupon. The plaintiff-

appellant is in possession of the suit property. Therefore, it is

submitted that the trial Court has committed error in not finding

any prima facie case in favor of the appellant-plaintiff.

4. Learned counsel for the appellant-plaintiff also submitted

that on 1.12.2020, the appellant came to know that the

respondent no.1 has executed a sale deed with respect to the

entire suit property in favor of defendants-respondents nos.2 and

3, which is prima facie unlawful as the suit property is not a self-

acquired property of the respondent no. 1. It is submitted that

such an act would cause irreparable loss to the plaintiff-appellant

as he would be precluded from enjoying his rights with respect to

his share of the property. Therefore, the balance of convenience

also lies in favor of the plaintiff-respondent and the trial Court

committed grave illegality in rejecting the application for

temporary injunction filed by the plaintiff-appellant. In support of

his contentions, learned counsel for the appellant relied upon the

judgment of the Hon'ble Supreme Court delivered in the case of

Ram Singh & Ors. Vs. Col. Ram Singh reported in AIR 1986 SC 3.

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5. Per contra, learned counsel appearing for the defendants-

respondents submits that the property in question is not the joint

family property and the same is a self-acquired property of the

defendant-respondent no.1. It is submitted that the appellant was

living separately and was in Kuwait when the suit property was

purchased and he has not contributed for purchase of the suit

property. It is further submitted that there was neither any family

settlement nor any family partition of the said property. The

defendant-respondent no.1 being the owner of the suit property,

in his prerogative, has rightly executed the sale deed in favor of

the defendants nos.2 and 3. Learned counsel further submits that

the plaintiff-appellant is not in possession of the suit property.

Thus, the learned trial court while taking into consideration all the

facts and circumstances of the case, has rightly rejected the

application seeking temporary injunction. In support of his

contentions, learned counsel for the respondents relied upon the

following judgments:

i. Premji Ratansey Shah & Ors. Vs. Union of India & Ors

reported in (1995) 0 AIR (SCW) 2425.

ii. Bhoomireddy Chenna Reddy & Anr. Vs. Bhoospalli Pedda

Verrappa (Dead) by LRs & Anr. Reported in (1997) 0 AIR

(SC) 2311.

iii. Raghunathdas Vaishnav Vs. Municipal Board, Nathdwara

through the Commissioner, Municipal Council, Nathdwara

reported in 2019(2) DNJ 725.

iv. Mohan Lal Vs. Jai Singh reported in 2018(1) WLC (Raj) (UC)

26.

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6. Heard the learned counsel for the parties and perused the

material available on record as well as the impugned order passed

by the learned trial court.

7. It is a settled legal proposition that no injunction can be

granted against a true owner. The learned trial court vide

impugned order dated 11.8.2021 has elaborately discussed the

case of the plaintiff-appellant for grant of temporary injunction

and has rejected his application for temporary injunction as the

defendant-respondent no.1 is the registered owner of the suit

land.

8. This Court in Mohan Lal (supra) in para no.4 held as under:-

"4. The trial court vide order dated 6.9.2016 has elaborately discussed the case of the plaintiffs for grant of interim injunction and found against them as the defendants are registered owners of the suit land and in possession. There was thus no prima facie case found in favour of the plaintiffs, nor balance of convenience or any irreparable injury. The appellate court affirmed the said order in the plaintiffs' civil miscellaneous appeal, yet oddly directed for maintaining status quo for vague and unsustainable reasons."

9. On the issue of plaintiff-appellant being in possession of the

suit property, even if it is assumed that the plaintiff-appellant is in

possession, then also his possession is wholly unlawful possession

and an injunction cannot be issued in favor of the trespasser and

against the true owner. The learned trial Court rightly held that

there is no prima facie case found in favor of plaintiff-appellant,

nor any balance of convenience lies in his favor or any irreparable

loss would be caused to him.

10. In these circumstances, this Court is of the considered view

that the order passed by the learned trial Court does not suffer

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from any illegality and is a speaking order and the same does not