Heard Shri Deepak Seth Learned Senior Advocate assisted by Shri Vijay Krishna for petitioner and Shri RP Singh for the opposite party No 2.
Notice is not being issued to opposite party no 3 to 12 as they are proforma opposite parties for the reason that they had not challenged the order of the trial court rejecting the plaintiff' opposite party's application 6Ga2. Counter and Rejoinder affidavits have been exchanged and with the consent of the learned counsel for the petitioner and the opposite party no 2, this writ petition is being finally disposed of at this stage.
Brief facts of the case are that Smt Pushpa Srivastava opposite party no 2 filed Original Suit No 282/08, against the petitioner Bipin Bihari Lal Srivastava and proforma opposite party nos 3 to 12, in the court of civil judge (Senior Division) Faizabad for delivery of possession over her 1/10th share in the property described in the plaint map after partition and a decree for permanent injunction restraining the defendant /petitioner and other opposite parties from raising any construction over the land shown by letters AA,BA,SA,DA,VA,SA: And DA,YA,RA, alleging inter alia that one Chhail Bihari Lal Srivastava was the owner of the property described in the plaint map which comprised of two Nazul plots namely plot No.3992 M in respect of a portion where of aforesaid Chhail Bihari Lal Srivastava had obtained a residential lease in the year 1954 and had constructed a house there on and a portion of plot No.3993 M in respect of which he had obtained a garden lease in the year 1957, described in the plaint map as Sehan land' ; that after the death of aforesaid Chhail Bihari Lal Srivastava, his widow also died and the plaintiff opposite party no 2, defendant opposite party nos 3 to 5 and 9 to 12, the petitioner who are sons and daughters of late Chhail Bihari Lal Srivastava and opposite party No.6 to 8 who are the sons and widow of late Vinod Bihari lal Srivastava, predeceased son of late Chhail Bihari Lal Srivastava became the joint owners of the disputed property in equal shares; that the defendant petitioner wanted to take forceful possession of the sehan land lying adjacent to the house in question hence the suit was filed by the plaintiff opposite party no 2 for partition of and possession over her 1/10th share in the disputed property and for permanent injunction.
Along with the plaint the opposite party no 2 also filed an application 6Ga2 under order 39 Rule 1 and 2 seeking temporary injunction restraining the petitioner from raising any new construction in the house in question and on the sehan land during the pendency of the suit.
The defendant/ petitioner contested the application 6 Ga2 by filing his objection before the trial court inter alia alleging that the plot no 3992 was a big plot and on a portion where of the house of the petitioner and opposite parties no 3 to 9 is situated and the land shown as sehan land in the plaint map is a portion of the plot No. 3993M measuring about 13 Bigha 5 Biswa and 2 Dhur which had been under the ownership and possession of the Nazul department; that the egress and ingress of the house built on a portion of the aforesaid nazul plot no 3992 which was numbered as house no 30/1, Civil Lines Faizabad was always from the northern side ;late Chhail Bihari Lal Srivastava had bequeathed the entire first floor of the house in dispute measuring about 75 feet x 32ft and the south eastern portion of the ground floor portion of the house in dispute in favour of the petitioner by a registered will deed executed in his favour in the year 1983; that after the death of Shri Chhail Bihari lal Srivastava in January 1991, the petitioner became the absolute owner of the aforesaid portion and had been in exclusive possession thereof since then and has raised valuable constructions thereon after investing a huge amount; that the petitioner also became the co- owner of the remaining portion of the house in question alongwith other heirs of late Chhail Bihari Lal Srivastava; that the Nazul department had auctioned the plot no 3993 which is adjacent to the disputed. house to different persons including the petitioner after sub dividing the aforesaid plot in several small plots and the petitioner vide a registered free hold deed dated 20.08.1996, purchased 2117sq ft land of the aforesaid plot No. 3993 from the Nazul department shown as sehan land in the plaint map and after investing lacs of rupees got constructed a four storey structure there on and building material is still lying at the site of the construction; that the opposite party has got no right, title or interest in the property purchased by the petitioner from the Nazul department on 20.08.1996 and bequeathed to him by his father which has been wrongly shown by the opposite party no 2 in the plaint map as the joint property of the parties ; that the opposite party no 2 has no right to maintain the suit against the petitioner.
Learned Additional Civil Judge (Senior Division) Faizabad by his order dated 10.02.2009, after considering the respective claims of the parties and the evidence on record rejected the application 6Ga2 holding that neither there was any prima facie case to be tried nor the balance of convenience was in favour of the plaintiff opposite party no 2, nor the plaintiff/ opposite party no 2 shall suffer any irreparable injury in the event of being denied temporary injunction during the pendency of the suit.
Aggrieved from the order of the learned Additional Civil Judge (Senior Division) Faizabad dated 10.02.2009 plaintiff opposite party no 2 filed an appeal under Order 43 Rule 1(r) and Section 104 of the Civil Procedure Code before the District Judge Faizabad which was numbered as Miscellaneous Civil Appeal No 21 of 2009 and the District Judge Faizabad by his Order dated 24.03.2009 allowed the appeal in part whereby he directed the parties to maintain status quo in respect of the suit property during the pendency of the suit and further the suit itself was directed to be decided within a period of six months. The instant writ petition has been filed by the petitioner for quashing the Order dated 24.03.2009 passed by District judge Faizabad allowing Civil Miscellaneous Appeal No 21 of 2009.
Learned counsel for the petitioner submitted that the appellate court has manifestly erred in interfering with the discretion exercised by the trial court in refusing to grant temporary injunction to the plaintiff /opposite party no.2 after considering the entire material on record and returning the findings on issues of prima facie case, balance of convenience and irreparable loss. against the plaintiff. He further submitted that there was no evidence on record indicating that the construction which was being raised by the petitioner was on the joint land of the parties. Learned counsel for the petitioner further submitted that petitioner is raising construction on the land which he had purchased from the Nazul department and which had been wrongly shown as joint property of the parties in the plaint map and had already raised construction up to the fourth floor even before the date of filing of suit after spending lacs of rupees which had been obtained by him by way of financial assistance from different banking and financial institutions and in case the petitioner is not permitted to complete the existing incomplete structure on account of the status quo order passed by lower appellate court the petitioner will suffer irreparable loss and injury and on the other hand if the petitioner is permitted to complete the construction and ultimately it is found in the suit that the land on which the construction has been raised, was the joint property of the parties the said construction can always be ordered to be demolished. Even otherwise the plaintiff opposite party no 2 who admittedly is a resident of 329, Sector 38-A Chandigarh has failed to lead any evidence which may even prima facie show that she was ever in possession over the disputed property or that the land on which the constructions are being raised by the petitioner was the joint property of the parties or that the egress or ingress to the house in dispuste was in the south whereas the petitioner has led voluminous evidence which clearly indicates that the land lying to the south of the house in question described in the plaint map as sehan land is a part of Nazul plot no 3993m which had been purchased by the petitioner from the Nazul department by means of a registered free hold deed dated 20.08.1996 on which he was raising construction after raising funds / financial assistance from various banks and financial institutions.
Learned counsel for the petitioner next submitted that the appellate court without taking notice of the aforesaid aspect of the matter has allowed the appeal of the plaintiff opposite party no 2 in a mechanical manner without giving any reasons for disagreeing with the findings recorded by the learned Additional Civil Judge in his order dated 10.02.2009 on the issues of prima facie case, balance of convenience and irreparable loss.
Learned counsel for the petitioner also submitted that although the court below by the impugned order has directed the parties to maintain status quo in respect of the disputed property during the pendency of the suit, the court below has failed to record any finding that the disputed property prima facie was joint property of the parties and has merely observed that the disputed property has been said to be the joint property. He next submitted that in the absence of any finding that the disputed property was joint property of the parties, the impugned order passed by the court below directing the parties to maintain status quo in respect of the disputed property is perse illegal and suffers from a patent error of law.
He further submitted that the reason given by the court below in the impugned order for passing the status quo order , that in case either party is permitted to raise construction on the disputed land during the pendency of the suit the same may give rise to unnecessary complications without recording any corresponding finding that the disputed property was prima facie joint property of the parties is totally fallacious.
Learned counsel for the petitioner lastly submitted that the petitioner is willing to give an undertaking that in case he is permitted to complete the existing constructions which admittedly have been raised up to fourth floor and if ultimately the plaintiff's suit is decreed, the petitioner shall remove the construction and shall not claim any independent right in respect thereof.
Shri RP Singh learned counsel appearing on behalf of plaintiff opposite party no 2 vehemently contended that the impugned order is a well reasoned order and is based upon relevant considerations. The findings recorded by the court below in the impugned order on the issues of prima facie case, balance of convenience and irreparable loss are supported by cogent reasons. He next contended that the ingress and egress of the house in question was always from the southern side of the house and although there was a passage in the north of the house but the same was used only by the scavengers. He further contended that in case the petitioner is permitted to complete the existing structure the plaintiff opposite party no 2 shall be deprived of her only means of egress and ingress to the house in question. He also contended that late Chhail Bihari Lal Srivastava never executed any will in favour of the petitioner and that the Nazul department was never in possession over the portion of plot no 3993m which was leased out to the father of the plaintiff opposite party no 2 in the year 1957 and since then he was in possession thereof during his lifetime and after his death the plaintiff /opposite party no 2 and his brothers and sisters came into joint possession over the same and hence the Nazul department had no right to grant any lease in respect thereof to any person.
Learned counsel for plaintiff opposite party no 2 relying upon the cases of Kendriya Karmchari Sehkari Grih Nirman Samiti limited v/s New Okhla Industrial Development Authority reported in 2009 (27 LCD185 ) Akbar Ali and others vs District Judge Bahraich,Reported in 2004(22)LCD 744 further contended that when question of immovable property is involved the order expediting hearing of the suit with direction to maintain status quo is perfectly justified.
I have carefully examined the submissions made by learned counsel petitioner, plaintiff/ opposite party no 2 and perused the record. It is undisputed that the plaintiff opposite party no 2 filed the suit for partition and possession and for permanent injunction in respect of the disputed property alleging the same to be joint property, which comprised of a double storey house and the adjoining land lying to the south of the house. According to the plaintiff /opposite party no 2 the number of the Nazul plot on which the house exists is 3992m and the number of the plot lying in the south of the house described as sehan land in the plaint map is 3993m. It is also undisputed that the father of the plaintiff opposite party no 2 and the petitioner and the other opposite parties had obtained a residential lease in respect of plot no 3992 on which the house in dispute exists. As far as the disputed portion of plot no 3993m is concerned the plaintiff /opposite party claims that late Chhail Bihari Lal Srivastava had been granted a garden lease in respect thereof. On the other hand according to the petitioner plot no 3993m belongs to the Nazul department which had executed a registered free hold deed in favour of the petitioner in respect of an area of 2116 sq. ft whereof in the year 1996 where upon the petitioner had become absolute owner thereof and even his name had been mutated in municipal records and the said property was not the joint property of the parties. The petitioner does not dispute the fact that the house in dispute was built by his father late Chhail Bihari Lal Srivastava but according to him in respect of first floor portion of the house in dispute measuring 75ft x 32 ft and the ground floor rooms on the south eastern portion of the house late Chhail Bihari Lal Srivastava has executed a will in his favour in the year 1983 and after the death of his father in January 1991 he became absolute owner of the bequeathed property and co owner of the remaining portion of the house in dispute . With regard to the egress and ingress to the house in question the petitioner's case is that the ingress and egress of the house in dispute has always been from the northern side of the house but according to plaintiff opposite party no 2 the main gate of the house in question is in the south and the passage which exists in the north of the house is a narrow passage used only by scavengers.
The plaintiff in order to obtain temporary injunction in a suit has to establish that there is a prima facie case to be tried, the balance of convenience is in his favour and in case of refusal of grant of temporary injunction the plaintiff shall suffer irreparable loss and injury. In the present case the trial court after considering the pleadings of the parties and the evidence on record rejected the temporary injunction application of the plaintiff opposite party deciding all the aforesaid three issues against her.
Now what is to be seen is as to whether the appellate court was legally justified on facts of the case and the material on record in setting aside the order of the trial court and in passing an order directing the parties to maintain status quo in respect of the disputed property during the pendency of the suit.
I have very carefully gone through the judgment passed by the court below and I am constrained to observe that although the appellate court with a view to preserve the nature of the disputed property has directed the parties to maintain status quo but no finding has been recorded by him that on the basis of material on record the appellate court was satisfied that the disputed property was prima facie the joint family property of the parties. The lower appellate court has merely observed that the disputed property is joint family property but even the said obseration is not warranted by any material on record at least to the extent it relates to the sehan land. In my opinion the lower appellate court has manifestly erred in passing the order directing the parties to maintain status quo in respect of a property which the appellate court did not found to be a joint family property. The District Judge has committed a patent illegality in accepting the assertion made by the plaintiff that the entire property in dispute is the joint property of the parties. and disregarding the material before the lower appellate court which prima facie indicated that petitioner was the exclusive owner of an area of 2117sq ft of plot no 3993m lying in the south of the disputed house which had been purchased by him from the Nazul department by registered free hold deed dated 20.08.1996 copy whereof is on record as annexure no.4 and the petitioner had raised valuable constructions thereon up to the fourth floor in accordance with a sanctioned map after investing lacs of rupees, which he had arranged by way of loan and interest on loan was mounting everyday. The record further shows that admittedly the plaintiff opposite party is not residing in the house in dispute and she is presently living in Chandigarh. No doubt she may be having 1/10th share in the property left by her father Chhail Bihari Lal Srivastava but at this stage I am of the view that she has failed to make out any case for grant of any ad-interim injunction during the pendency of the suit with regard to the sehan land.
There is no doubt that this Court in the cases of Kendriya Karmchari Sehkari Grih Nirman Samiti Limited (Supra) and in the case of Akbar Ali (supra) held that when the question of immovable property is involved the court below can expedite the hearing of the suit with direction to the parties to maintain status quo but the principle of law laid down in the aforesaid cases cannot be applied to the facts of the present case as the plaintiff /opposite party has failed to show by any material or document that late Chhail Bihari Lal Srivastava had obtained a garden lease in respect of the land lying to the south of the house in dispute claimed as joint sehan land by the plaintiff. On the other hand the petitioner has succeeded in showing his prima facie title over the sehan land on the basis of the registered free hold deed dated 20.8.96 executed in his favour by the Nazul department on the basis of which his name has been recorded in the municipal records as the owner of the said land. It is noteworthy that till date the plaintiff opposite party has not taken any steps to get the aforesaid free hold deed cancelled or adjudged void. The position with regard to the house in dispute may be different as the same is admitted to have been built by common ancestor Sri Chhail Bihari Lal Srivastava and although the petitioner claims exclusive ownership over an area of 75 ft x 32 ft of the first floor portion of the house and the rooms existing in the south eastern portion of the house in dispute on the basis of a will executed in his favour by Late Chhail Bihari Lal Srivastava the said will being disputed by the plaintiff, and the genuineness of the will is yet to be adjudicated upon by the court, the order passed by the appellate court directing the parties to maintain status quo in respect of the house in dispute during the pendency of the suit can not be faulted with till the genuineness of the will is determined but the same cannot be said with regard to plot no 3993m at this stage. Although the plaintiff opposite party has claimed that in case the petitioner is permitted to complete the existing structure , the egress and ingress of the ancestral house shall be blocked but she has not led any evidence in this regard which may even prima facie indicate at this stage that the egress and ingress of the house in dispute from the south.
Hence in view of the above discussions this Court is of the view that the lower appellate court has erred in setting aside the order of the trial court refusing to grant temporary injunction to the plaintiff opposite party and in partly allowing the application of the plaintiff opposite party by the impugned order in respect of the sehan land which is part of plot no 3993m. The plaintiff /opposite party neither has any prima facie case in respect of the sehan land nor the balance of convenience is in her favour nor she will suffer any irreparable loss in the event of being denied temporary injunction with regard to the sehan land. Thus the findings recorded by the appellate court on the issues of prima facie case, balance of convenience and irreparable injury are set aside to the aforesaid extent.
For the aforesaid reasons the writ petition is partly allowed. The order dated 24.03.2009 passed by District Judge Faizabad is modified to the extent that the direction issued by the appellate court for maintaining status quo shall be confined to the house existing on Nazul plot no 3992 alone. The status quo order issued in respect of the sehan land which is part of plot no 3993m is set aside . The direction issued by the appellate court vide impugned judement to the trial court to decide the suit itself within six months is maintained. The trial court shall decide the suit on merits without being influenced by any observations made herein above.
Order Date :- 22.1.2010