Hon'ble Ashok Pal Singh,J.
(Delivered by Hon'ble Ashok Pal Singh,J.)
1. We have heard learned counsel for the appellants and learned counsel for the respondent.
2. This appeal under Order 43 Rule 1(r) C.P.C. has been preferred against the Judgment and Order dated 07-11-2013 passed by learned Civil Judge, Malihabad (Senior Division), Lucknow in Regular Suit No. 538 of 2013, Kunwar Mohan Rakesh and Others Versus Kunwar Mukul Rakesh, whereby application under Order 39 Rule 1 and 2 C.P.C. moved by the plaintiffs-appellants against the defendant- respondent has been rejected.
3. The dispute involves bhumidhari plot no. 457 area 3 biswa and plot no. 466 area 3 biswa the ownership of which originally vested in late Kunwar Shanti Prakash. Appellants no. 1 to 3 and the respondent are his sons. There is one more son namely Kunwar Mridul Rakesh who has not been made a party either to the suit or the present appeal. Both the aforesaid plots stand amalgamated on the spot and there is a room along with one kitchen, toilet and a bathroom in the northern part of the aforesaid land since the life time of late Kunwar Shanti Prakash.
4. Admittedly, after the death of Kunwar Shanti Prakash, a portion of the aforesaid land had been transferred by the appellants and Kunwar Mridul Rakesh (non party) to Smt. Navalpati Verma and Smt. Rama Devi vide sale deed dated 01-12-2005.
5. In the aforesaid sale deed, the appellants as well as Kunwar Mridul Rakesh claimed transferred property to be exclusively in their share, ownership and possession on the basis of family settlement made between all the sons of late Kunwar Shanti Prakash. According to the admitted case of the appellants, remaining area of the aforesaid land alongwith constructions therein had not been transferred as it was considered by them to be in the portion falling within the share of defendant respondent. This remaining area has been termed as disputed property by the appellants in the regular suit no. 538 of 2013.
6. Before filing of the above suit, the defendant-respondent also had filed a regular suit no. 660 of 2005 for permanent injunction against the appellants and Kunwar Mridul Rakesh, (transferors) as well as Smt. Navalpati Verma and Smt. Rama Devi, (transferees) for getting the aforesaid sale deed dated 01-12-2005 declared void and also for permanent injunction. An application for temporary injunction was also moved therein by the respondent for restraining them from alienating or to change the nature of the property sold.
7. The case taken up by the appellants is that till filing of the objections by them in the aforesaid suit no.660 of 2005, they had no knowledge of will dated 25-12-1996 which had been executed by late Kunwar Shanti Prakash in favour of the appellants whereby he had bequeathed the entire land of the two plots to them alone. Subsequently when the appellants came to know about the aforesaid will, they also moved an application for temporary injunction in the aforesaid suit no. 660 of 2005 on 30-10-2006 for restraining the present respondent from alienating the remaining portion of the said land to any other person. The said application was contested by the present respondent and the learned trial court vide its order dated 16-12-2006 while making disposal of the temporary injunction applications of both the parties directed the parties of that suit not to change the nature of the disputed land during the pendency of the suit. It is further alleged by the appellants that after aforesaid order, the respondent left taking any interest in the proceedings of that suit and the said suit was dismissed in default of the presence of the respondent on 04-07-2011. However, an application under Order 9 Rule 9 C.P.C. moved by the respondent is now pending disposal in that suit.
8. In the background of the aforesaid facts and allegations the appellants filed the original regular suit no. 538 of 2013 before the trial court for permanent injunction and also moved an application under Order 39 Rule 1 and 2 read with section 151 C.P.C. against the respondent for restraining him to alienate the disputed property and also to maintain the status-quo on the spot during the pendency of the suit.
9. The respondent in his objections against the temporary injunction application moved by the appellants has taken a case that no will dated 25-12-1996 was ever executed by his father in favour of the appellants. The respondent was a co-sharer in the entire disputed land alongwith his other brothers. The appellants and Kunwar Mridul Rakesh, his other brother have already transferred their share to Smt. Navalpati Verma and Smt. Rama Devi vide sale deed dated 01-12-2003. In the transferred portion also the respondent was a co sharer but no consent of the respondent had been taken by his brothers while transferring the same. However, the remaining portion of the land with constructions there on which was in the possession of the respondent had been left over by them to be sold considering the same to be in the share of the respondent.
10. A perusal of the impugned order reveals that temporary injunction application moved by the plaintiffs-appellants has been rejected by the learned trial court after recording a finding that no prima-facie case had been made out by the plaintiffs-appellants. Learned trial court has observed that appellants along with Kunwar Mridul Rakesh have already sold their share of disputed land in favour of Navalpati Verma and Smt. Rama Devi vide registered sale deed dated 01-12-2005. As such their right, title and interest in the disputed land has already been extinguished. After execution of the above sale deed only share left in the remaining property is of the respondent. The appellants are now claiming ownership in the remaining property on the basis of unregistered will which is said to have been executed in the year 1996 by the father of the parties. The right, title and interest of the appellants on the basis of the said will have not been declared so far by any competent court.
11. Challenging the impugned order, submission of learned counsel for the appellants is that while deciding the temporary injunction application, the trial court has manifestly erred in holding a mini trial of the suit. It had no jurisdiction to enter into the merits of the case. Reliance has been placed by learned counsel for the appellants on the decisions of this court rendered in Amir Alam Khan Versus Lucknow Development Authority and Another, [2011 (29) LCD 1695] and Anupam Sahkari Avas Samiti Ltd. Versus Addl. District Judge, Court No. 4, Lucknow and Another [2006(24)LCD 137].
12. Per contra it has been contended by learned counsel for the respondent that the suit is not cognizable by the civil court as it pertains to a title dispute about an agricultural land. All the sons of the deceased Bhumidhar, Kunwar Shanti Prakash, have inherited the disputed land after his death as Co-Bhumidhars. The appellants are claiming their exclusive ownership on the basis of an unregistered will which is yet to be proved in accordance with law during the course of trial. The exclusive ownership of the appellants in the disputed land on the basis of said will is yet to be adjudicated and declared by a competent court. The submission of learned counsel for the respondent is that due to Bhumidhari nature of the disputed land, the revenue court alone has the jurisdiction under section 229-B U.P.Z.A.& L.R.Act and the civil court will not be having any jurisdiction to adjudicate the dispute. Reliance has been placed by learned counsel for the respondent on the decision of Hoble Supreme Court rendered in Kamla Prasad and Others Versus Kishna Kant Pathak And Others (2007) 4 Supreme Court Cases 213.
13. In Amir Alam Khan and Anupam Sahkari Avas Samiti Ltd. (Supra) decided by division bench of this court of which one of us ( Devi Prashad Singh J,) was a member it was held that a court should not proceed for mini trial of the suit while granting or refusing an application for temporary injunction filed under Order 39 Rule 1 and 2 CPC.
14. There is no denial about the aforesaid settled legal proposition. A court should refrain itself in adjudicating the controversies between the parties on merits while deciding a temporary injunction application. It has to decide such an application on the underlying considerations of prima-facie case, balance of convenience and irreparable injury.
15. It has also to be borne in mind that no reasoning or finding recorded at the time of disposal of temporary injunction application while considering the prima-facie case would act as a precedent or res-judicata at the time of final disposal of the suit on its merits. It needs to be reiterated that reasonings and conclusions given at the time of disposal of temporary injunction application are intended only for the limited purpose of disposal of said temporary application.
16. In State of Assam v. Barak Upatyaka D. U. Karmachari Sanstha (2009)5 SCC 694 Hon'ble Apex court explaining the object and scope of an interim/ interlocutory /Injunction order has in para 21 observed as under;-
"A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing."
17. A careful reading of the impugned order reveals that prima-facie case of the appellants has not been found to exist in their favour by the trial court, on the basis of admitted facts of the parties. The will in favour of appellants on the basis of which they are claiming ownership rights on the entire property is unregistered and not admitted to the respondent. As such its execution is yet to be proved in accordance with law at the time of trial of the suit subject to the jurisdictional competency of the trial court to try the present suit which necessarily involves declaration of rights of the appellants in the disputed property. According to the own case of the appellants before the aforesaid will had come into their knowledge they had already transferred their share vide sale deed dated 1-12-2005.
18. In Skyline Education Institute (India) (P) Ltd. Versus S.L. Vasvani and others (2010) 2 SCC 142 Hon'ble Supreme court has been of the view that admitted facts can be taken into consideration while deciding a temporary injunction application.
19. In view of the aforesaid admitted facts we are also of the opinion that no prima-facie case, balance of convenience or irreparable injury exits in favour of the appellants. We also find no force in the submissions of the learned counsel for the appellants that the trial court has held any mini trial of the suit while making disposal of temporary injunction application. We thus find no illegality, infirmity or perversity in the impugned order resulting any substantial injustice to the appellants.
20. As regards the question of jurisdiction as raised by learned counsel for the respondent placing reliance on the case of Kamla Prasad (supra), we are of the opinion that this question can be considered and decided by the trial court at an appropriate stage of the suit. As such we feel not inclined to make any further discussion about the same.
21. In view of above, we are of the considered opinion that no interference is warranted in the impugned order. However, before parting it is considered necessary to direct the trial court to complete the trial of the suit expeditiously say preferably within a year from the date of receipt of certified copy of the present order and considering the totality of factual matrix, we also feel it necessary to make the right, title and possession of the property in dispute subject to final outcome of the suit in question.
22. Subject to above, the appeal is disposed of finally.
Date : 12 Nov, 2014 AKS/-