Jugal Kishor Taparia vs Nathmal (2023:Rj-Jd:29794)
2023 Latest Caselaw 7270 Raj

[2023:RJ-JD:29794]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 144/2021

Jugal Kishor Taparia S/o Chhaganlal, Aged About 69 Years, Village Sandwa, Tehsil Bidasar, Dis. Churu. At Present Power House Road, Gatta Meel, Post Mainpuri 205001, Uttar Pradesh

----Appellant Versus

1. Nathmal S/o Banshilal, Naya Bas, Sujangarh. At Present 46, Strand Road, 3Rd Floor, Kolkata (W.b.)70007

2. Nandlal Somani S/o Shriram, Naya Bas, Sujangarh, Dis.

Churu

3. Sub-Registrar, Sujangarh, Sub Registrar Office, Sujangarh

4. Shankarlal Taparia S/o Laxminarayan, Sandwa, At Present Inlent Khtha Product Pvt. Ltd. Vahalgarh Road, Sonipat Hariyana

5. Brijmohan S/o Rameshwarlal, Sandwa, At Present D.i.153. Sector 2, Salt Lake, Kolkata 70069, W.b.

6. Sitaram S/o Rameshwarlal, Sandwa, At Present D.i.153.

Sector 2, Salt Lake, Kolkata 70069, W.b.

7. Smt Beena Sarda W/o Rameshwarlal Taparia,, No. 6,bidon Street, Kolkata, 70069, W.b.

8. Madhu Kasath D/o Rameshwarlal Taparia, D.i.21, Salt Lake, Sector 2, Madhu Kung, Kolkata, 70069, W.b.

9. Shivratan Taparia S/o Chhaganlal, Sandwa, Tehsil Bidasar, Dis. Churu. At Present Saket Dham, Station Road, Mainpuri, Uttar Pradesh

10. Ramkanya D/o Chhaganlal Taparia, Aguna Bas, Nokha, Dis. Bikaner

11. Vimla D/o Chhaganlal Taparia, Kakda, Tehsil Nokha, Dis.

Bikaner

12. Pushpa D/o Chhaganlal Taparia, Basant Kunj, Sindhanchal Building, Post Thane, Maharashtra

----Respondents

For Appellant(s) : Mr. O.P. Mehta through VC with Mr. V.D. Gaur & Mr. Harshvardhan

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For Respondent(s) : Mr. A.K. Rajvanshy with Mr. Ankit Bhaskar

HON'BLE MS. JUSTICE REKHA BORANA

Order

15/09/2023

1. The present misc. appeal has been preferred against the

order dated 09.11.2020 passed by the Additional District Judge,

Sujangarh, District Churu in Civil Misc. Case No.11/2020, whereby

the application under Order 39 Rules 1 & 2, CPC filed by the

plaintiff/appellant has been rejected and that of the defendants

no.1 and 2 has been allowed.

2. The brief facts of the case are that the plaintiff/appellant

Jugal Kishore filed a suit for declaration and partition along with

an application for temporary injunction against the defendants/

respondents with the following averments :-

(i) The appellant's grand father Laxminarayan Taparia and

Banshi Lal Jhanwar, father of the respondent no.1 had joint

business in the name of two firms namely, M/s. Banshilal Madanlal

and M/s. Chandrabhan Laxminarayan. Both of them were relatives

being Sala and Jija.

(ii) In Samwat 2007, both of them jointly took the disputed shop

on rent and commenced a business in partnership in the name of

M/s. Tarachand Nathmal. Shriram Somani was appointed as a

Munim in the firm by the appellant's grand father Laxminarayan

Taparia who also happened to be a relative of Banshilal Jhanwar.

The share in the said partnership firm was determined to be six

annas for Shriram Somani, five annas for Laxminarayan Taparia

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and five annas jointly for Banshi Lal Jhanwar, Ganga Bishan,

Madanlal and Malchand Jhanwar.

(iii) In Samwat 2019, to be specific, on 19.09.1962, the shop in

question was purchased for a consideration of Rs.12,500/- and the

complete consideration amount was paid by Laxminarayan

through Munim Shriram Somani. However, Banshilal Jhanwar got

the sale deed executed in favour of his grand son Nathmal

Jhanwar (respondent no.1) without informing Laxminarayan, the

appellant's grand father of the same.

(iv) As Laxminarayan resided at Kolkatta, he was not aware of

the sale deed having been executed in favour of Nathmal Jhanwar

and came to know about the same in the month of July 1964

when he came to Jodhpur. Coming to know about the same, a

written document was executed on 7.7.1964 with the interference

of several Panchas of the Society and vide the said document, it

was understood between the parties that Laxminarayan would be

entitled to ½ share in the firm/shop. It was also understood that

Laxminarayan would remain the owner of ½ share till his lifetime

and after his death, the said share would devolve to his grand son

Jugal Kishore (present plaintiff).

(v) In July 2020, Shivratan Taparia, brother of the present

plaintiff Jugal Kishore, was restrained by respondent no.1 from

entering the shop premises and hence, the cause of action for the

present suit arose. The present suit was therefore filed for

partition as well as injunction against the defendants.

3. The defendants, while filing reply to the application under

Order 39 Rules 1 & 2, CPC as preferred by the plaintiff, also

preferred an application under Order 39 Rules 1 & 2, CPC praying

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for injunction in their favour. The case of the defendants no.1 and

2 was that Laxminarayan Taparia was never a partner in the firm

and Shriram Somani was never appointed Munim in the firm,

rather he was a partner with six annas share. The sale deed was

got executed in favour of Nathmal as the property was purchased

by Nathmal himself and hence, was his self acquired property. The

consideration for the shop was not paid by Laxminarayan Taparia

but the shop was self acquired property of defendant no.1

Nathmal. The alleged written understanding dated 7.7.1964 is a

forged document and the alleged signature of defendant no.1

Nathmal on the same is also forged.

4. The learned Court below, on basis of the averments made in

the respective applications, observed that the document dated

7.7.1964 did not bear the signature of Banshilal Jhanwar and

neither did it bear the signatures of the so-called Panchas in

whose presence, the document was alleged to have been

executed. The Court below held that even if the said document is

taken into consideration, when weighed vis-a-vis the registered

sale deed in favour of Nathmal Jhanwar, the said document would

be of not much relevance. The Court below further held that the

defendants had prima-facie proved their possession on the

premise in question and therefore, the balance of convenience was

also in favour of the defendants who alleged to run a business in

the said shop. The Court also observed that the plaintiff was well

aware of the sale deed dated 9.9.1962 since the year 1964 and

yet the suit in question was preferred in the year 2020 and no

reason for such delay, which could be said to be plausible, was

given. On basis of the said findings, the Court below did not find

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any prima-facie case in favour of the plaintiff and hence, while

rejecting his application vide impugned order dated 9.11.2020,

proceeded on to allow the application for temporary injunction as

preferred by defendants no.1 and 2.

5. Learned counsel for the appellant raised the following

grounds before this Court :-

(i) The Court below exceeded its jurisdiction in entertaining the

application as preferred by the defendants for temporary

injunction without there being any counter claim filed on their

behalf. He submitted that no provision of law provides for the

same.

(ii) The Court below erred in allowing the application of the

defendants only on basis of the fact that they were in possession

whereas, in a suit for partition, the possession is irrelevant as

each co-parcener/partner is deemed to be in possession. In

support of his submission, he relied upon :-

(a) Jagannath Amin vs. Seetharama (Dead) by LRs. & Ors.,

(2007) 1 SCC 694 ;

(b) Meena vs. Komal Devi and Ors., AIR 2004 Raj. 77 ; and

(c) Neelavathi and Ors. vs. N. Natarajan & Ors., AIR 1980

SC 691.

(iii) In the earlier suit preferred by Shivratan, brother of the

present plaintiff, the fact of the shop in question having been

rented jointly by the plaintiff's grand father and defendant no.1's

father was not denied by the defendants and non-denial of the

same amounted to a clear admission. The Court below totally

ignored the said written statement as well as admission in the said

statement although placed on record by the plaintiff.

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(iv) While considering the fact of the suit having been filed after

a period of 58 years, the Court below ignored the fact that no

cause of action arose to the plaintiff till the year 2020 as the

written understanding of the year 1964 existed in his favour and

the same was never denied by the defendants.

6. Per contra, learned counsel for the respondents submitted as

under :

(i) The Court below rightly observed the suit to be time barred

as it is clear on record that the grand father of the plaintiff

through whom the plaintiff alleges to be the owner, was well

aware of the sale deed dated 9.9.1962 in the year 1964 itself but

neither he preferred any suit at that relevant point of time nor did

the plaintiff prefer any suit within the prescribed limitation. In

support of his submissions, he relied upon the judgment of the

Hon'ble Supreme Court in R. Ravindra Reddy & Ors. vs. H.

Ramaiah Reddy & Ors., AIR 2010 SC 991.

(ii) The provisions of law very well provide for filing of a cross

application for temporary injunction in a suit for injunction. The

Court below rightly entertained the application for temporary

injunction as preferred by the defendants. In support of his

contention, he relied upon the judgment of this Court in Rattu vs.

Mala & Anr., AIR 1968 Raj. 212.

(iii) On the same facts and for the same reliefs, Shivratan,

brother of the present plaintiff earlier filed a suit and failing to get

any relief in the said suit, the present suit has been filed by the

plaintiff in conspiracy with his brother. The same does not entitle

the plaintiff for any relief.

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(iv) The document dated 7.7.1964 is no document in the eye of

law so as to give any right to the present plaintiff. To the most,

the document can be said to be a will executed by Laxminarayan

in favour of plaintiff Jugal Kishore which, firstly, cannot bind any

third person and secondly, the said will, even if it is so assumed,

has to be proved in terms of law. The plaintiff cannot claim any

right against the defendants on basis of the said document.

(v) It was clearly proved on record that defendants no.1 and 2

were in possession of the shop in question and the said fact was

clearly proved vide the documents placed on record pertaining to

the business run in the said shop by the defendants.

7. Heard learned counsel for the parties and perused the

material available on record.

8. Dealing with the first ground as raised by learned counsel for

the appellant, whether the defendant can apply for injunction

against the plaintiff under Order 39 Rules 1 & 2, CPC in a suit for

injunction, it is the settled proposition of law that the same is

permissible. Undisputedly, the defendants had preferred a counter

claim in the suit and hence, were very much entitled to file an

application under Order 39 Rule 1, CPC. Reliance on judgments

rendered in the case of (1)Sivakami Achi vs. Narayana

Chettiar, AIR 1939 Madras 495 and (2) Rattu (supra) would

be relevant for the purpose wherein it has been held that a

defendant can also apply for an injunction against the plaintiff

under Order 39, CPC.

9. To decide whether any temporary injunction can be granted

in favour of a party, the Court is required at the foremost to

consider whether the party praying for injunction has been able to

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make out a prima facie case in its favour and secondly, in whose

favour the balance of convenience lies. In the present matter, it

has clearly been proved on record that the defendants no.1 and 2

are in possession of the property. So far as the plaintiff being

connected to the business run in the shop in question is

concerned, while hearing the arguments at the first instance itself,

this Court, vide order dated 17.2.2021 had directed the appellant/

plaintiff to place on record the relevant documents to show the

connectivity of the appellant with the business run in the suit

property after 1964 and also to show that the appellant was

having any connection with the said business. Despite being

granted more than 8 opportunities for the same, the appellant did

not place on record any such document and ultimately, vide order

dated 27.4.2023, this Court declined to grant any further time to

the appellant for the said purpose. Final arguments on the appeal

were then heard.

10. In view of the fact that the appellant failed to produce any

document even before this Court which could show any connection

of the plaintiff with the business run in the suit property, the

finding of the learned Court below that the plaintiff has failed to

make out any prima-facie case in his favour is further

strengthened. It is the settled proposition of law that for grant of

temporary injunction, the Court has to apply its judicial mind only

to the material which is placed on record and if by consideration of

the said material, the Court concludes that the plaintiff has prima-

facie case so as to justify issuance of temporary injunction in his

favour, the Court can proceed to grant the same. Since in the

present case, the plaintiff has miserably failed to make out any

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prima-facie case in his favour and further to prove that he is in

possession of the suit property in any manner, actual or

constructive, this Court cannot conclude any balance of

convenience also to be in his favour.

11. This Court is of the clear opinion that on comparative terms,

the defendants no.1 and 2 would be at a greater hardship, if any

injunction is not issued in their favour. Moreover, it is clear on

record that the plaintiff did not attempt to secure his rights, even

if any, for a long period of more than 50 years. Therefore also, it

cannot be concluded that he would suffer any irreparable injury at

this stage, if no injunction is granted in his favour.

12. So far as the judgment relied upon by learned counsel for

the appellant in the case of Neelavathi (supra) is concerned, the

Hon'ble Supreme Court therein held that the general principle of

law is that in case of co-owner, possession of one is in law

possession of all, unless ouster or exclusion is proved. The said

principle would not apply to the present matter as no co-

ownership, whatsoever, has been proved by the plaintiff qua the

property in question.

The other judgments as relied upon by the learned counsel

for the appellant are to the effect that to issue an injunction, the

Court has to be thoroughly satisfied that there is a prima-facie

case in favour of the applicant and once a prima-facie case is

found, the Court has to see whether the balance of convenience

lies in favour of the applicant. As observed above, in the present

case, the plaintiff has failed to prove any prima-facie case in his

favour.

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13. In view of the above analysis and observations, this Court

does not find any ground to interfere with the order impugned

dated 09.11.2020 and the present appeal is therefore, dismissed.

14. All the pending applications and stay petition also stand

dismissed.

(REKHA BORANA),J 1-SPhophaliya/-

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