Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1890 of 2018
Petitioner :- Ashwani Prasad And Anr.
Respondent :- Hinchhamani Shiksha Sewa Samiti And 5 Ors.
Counsel for Petitioner :- Ravi Shankar Mishra
Counsel for Respondent :- Bhupendra Kuamr Tripathi
Hon'ble Manoj Kumar Gupta,J.
The instant petition has been filed challenging the order of the trial Court dated 17.7.2014 rejecting the application for temporary injunction filed by the petitioners in Original Suit No. 1835/2013, as well as the order dated 16.2.2018 passed by the Special Judge, E.C. Act/Additional District Judge, Allahabad, in Misc. Civil Appeal No. 75/2014 dismissed the appeal.
The petitioners have instituted the suit for cancellation of two registered sale deeds, both dated 16.7.2013, one executed by defendant No. 3 in favour of defendant No. 1 and the other executed by defendant No. 3 in favour of defendant No. 2. The petitioners have also prayed for a permanent prohibitory injunction restraining the defendants from interfering in their possession. The case of the petitioners was that the suit property belonged to Smt. Abhiraji, who is the widow of Kamta Prasad, elder brother of their father Ram Abhilash. They claim that she had died on 30.1.1997 leaving behind a Will dated 25.1.1997 whereunder, the property has devolved upon them. The case of the petitioners was that defendant No. 3, after the death of Abhiraji, succeeded in manufacturing a sale deed dated 5.2.1997 in his favour by setting up an imposter. The petitioners have filed a suit for cancellation of the said sale deed, being Original Suit No. 722/2001 and it is still pending. During the pendency of the said suit, defendant No. 3 had executed two sale deeds, which are impugned in the suit.
The case of the defendants is that in fact there was no Will in favour of the petitioners and the alleged Will on basis of which they are claiming title, is a forged document. It is also their specific case that Abhiraji had not died on 30.1.1997, as claimed by the petitioners, but on 17.6.1999. Prior to her death, she had duly executed a registered sale deed dated 5.2.1997 in favour of defendant No. 3.
When Abhiraji found that the petitioners are preparing forged document relating to her death, she filed an application under Section 156(3) Cr. P.C. for registering a First Information Report against the petitioners. In pursuance thereof, the Court directed by order dated 29.7.1999 for a First Information Report being lodged against the petitioners. A charge sheet has also been submitted and criminal trial is pending against the petitioners.
The Courts below have found that there is no prima facie case in favour of the petitioners. It has been held that in the earlier suit being Original Suit No. 722/2001, which was filed by the petitioners for cancellation of sale deed dated 5.2.1997 by Abhiraji in favour of defendant No. 3, there is no injunction operating in favour of the petitioners. Consequently, mere pendency of the said suit would not be a bar in transferring the suit property in favour of defendant Nos. 1 & 2, although under Section 52 of the Transfer of Property Act, 1882, defendant Nos. 1 & 2 would be bound by the ultimate decision in the pending suit. The Courts below have also relied on the fact that Abhiraji herself appeared before the Magistrate and filed application dated 4.6.1999 for registering a First Information Report against the petitioners and on basis whereof criminal trial is still pending against the petitioners. It has also been observed that in yet another suit filed by defendant No. 3, an ex-parte injunction dated 1.12.1998 has been granted in his favour.
Counsel for the petitioners submitted that since the sale deeds impugned in the instant suit were executed during pendency of Original Suit No. 722/2001, therefore, the sale deeds are hit by Section 52 of the Transfer of Property Act, 1882. It is urged that the petitioners have a prima facie case and they were entitled for temporary injunction.
Counsel for the petitioners has placed reliance on the judgment of the Supreme Court in Ravi Prakash Agarwal Versus Rajesh Prasad Agarwal, 2008 Law Suit (SC) 2112 and judgment of this Court in Mandhata Singh Versus Bans Bahal Singh, 2017 Law Suit (All) 413, in contending that the parties should be directed to maintain status quo till the suit is decided.
This Court is unable to accept the submissions advanced by the learned counsel for the petitioners. Concededly, in the suit instituted by the petitioners for cancellation of sale deed dated 5.2.1997, which is the basis of title of defendant No. 3, there is no injunction operating in their favour. The pendency of a civil suit would only bind the defendants by the decree rendered in the pending suit. It will not, ipso-facto, render the sale void (vide 2007(1) AWC 907 - Hardev Singh Versus Gurmail Singh, 2010(14) SCC 370 - T.G. Ashok Kumar Versus Govindammal and another). There is no challenge to the finding recorded by the Courts below that Abhiraji herself filed an application dated 4.6.1999 under Section 156(3) Cr.
P.C. for registering a First Information Report against the petitioners. This also belies the case of the petitioners that she had died on 30.1.1997 and consequently the sale deed in favour of defendant No. 3 was a result of fraud. The judgments cited would not apply to the facts of the instant case. This Court does not find any illegality in the impugned orders to warrant interference in exercise of power under Article 227 of the Constitution.
The petition lacks merit and is dismissed.
The observations made by the Court below, nor in the instant order, would be taken as expression of opinion on merits, while deciding the suit finally.
(Manoj Kumar Gupta, J.)
Order Date :- 28.3.2018 AM/-