Bijai Singh and Others vs Harsh Kumari and Others

Vineet Kothari, J.—The present Misc. Appeal under Section 104 read with Order 43 Rule 1(r) of the Code of Civil Procedure has been filed by the appellants-non-applicants in a suit for partition against the impugned order dated 19.01.2015 passed by the learned Additional District Judge No. 3, Jodhpur Metropolitan in Civil Misc. Case No. 2833/2014 (42/2014) "Harsh Kumari v. Bijai Singh @ Vijay Singh & Anr." by which, the learned Trial Court has allowed the temporary injunction application filed under Order 39 Rule 1 & 2 of the Code of Civil Procedure by the the applicant-respondent-Harsh Kumari and directed the present appellants-non-applicants not to dispossess the applicant from the property mentioned in para No. 3 of the plaint and not to create any obstruction in the use and occupation of the property in question and also not to damage, alter or raise any new construction and not to sell the property in question to any other person and maintain status-quo of the property in question.

The present Misc. Appeal has been filed by the defendants namely, Bijai Singh @ Vijay Singh and Laxman Singh, father, son and real brother respectively of the plaintiff-respondent-applicant-Harsh Kumari aggrieved by the impugned order dated 19.01.2015 passed by the learned Trial Court allowing the temporary injunction application of the plaintiff-respondent in a suit for partition filed by her in respect of the property situated at Ratanada, Jodhpur.

The learned Trial Court has assigned the following reasons for grant of temporary injunction in favour of the applicant-respondent-Harsh Kumari which read as under:--

Hindu Succession Act (30 of 1956), Ss. 6 , 8 - Devolution of Coparcenary property - Suit for partition - Dismissal of - Validity - Plaintiff''s father got property in partition - It is his separate property - But plaintiff after his birth however acquires interest in property as coparcener - Order dismissing suit for partition treating plaintiff''s father property as self acquired property, therefore, not proper.

The learned counsels, Mr. V.K. Mathur and Mr. Arpit Bhoot, appearing for the appellants-defendants relying upon the judgment of the Hon''ble Supreme Court in the case of Yudhishter Vs. Ashok Kumar, submitted that the plaintiff-Harsh Kumari is the daughter of the defendant-Bijai Singh @ Vijay Singh and the sister of the defendant No. 2-Laxman Singh. The learned counsel also submitted that the plaintiff was married in the year 1975 but on account of unfortunate failure of her matrimony, she returned back to Jodhpur and started living with the defendants in the house situated over the suit property comprising of 5778.04 square yards land at Ratanada, Jodhpur. The learned counsel urged that the applicant-plaintiff has filed the present suit through a power of attorney, namely, Shri Narpat Singh S/o. Jog Singh claiming her share in the said suit property whereas, the defence of the defendants in the said suit was that the applicant-plaintiff has no share in the said suit property, as the original patta of the entire land in question of which, the defendants have one-third share, was in the name of Sir Pratap Singhji, who gifted this property to his son Hanut Singhji and by a registered partition deed dated 06.11.1956, the property was further partitioned amongst three sons of Hanut Singhji, namely, Captain Kunwar Vijendra Singh, Captain Kunwar Hari Singh and Kunwar Daljeet Singh. The learned counsel Mr. V.K. Mathur also contended that the suit property in the present suit is the personal property of the defendant No. 1-Bijai Singh @ Vijay Singh and, therefore, the same cannot be made the subject-matter of the partition suit treating the same as a joint family property. The learned counsel also relied upon an oral partition made by Vijay Singh of the year 1976. Lastly, the learned counsel Mr. V.K. Mathur submitted that the defendants do not have any serious objection to the right of residence given to the plaintiff in the impugned order dated 19.01.2015 in the residential portion of the suit property but the entire land of 5778.04 square yards cannot be made subject to a blanket status-quo order not allowing the defendants either to develop the suit land or even alienate the same, if the need be. The learned counsel, therefore, urged for modification of the impugned order dated 19.01.2015 in the present appeal.

The aforesaid contentions have been vehemently opposed by the learned counsel, Mr. R.K. Thanvi, Senior Advocate with Mr. Narendra Thanvi, appearing for the respondent-applicant-Harsh Kumari and, while relying upon a large number of judgments, they urged that since the property in question was owned by the defendant No. 1-Bijay Singh @ Vijay Singh of which, his son, the defendant No. 2-Laxman Singh and the plaintiff-Harsh Kumari are the equal co-sharer, therefore, till the partition suit is decided by the learned Trial court, the suit property deserves to be protected and maintained in the form and shape, as it exists today, so that the rights of the plaintiff are adequately safeguarded and protected, therefore, the impugned order in which there is no perversity does not call for any modification by this Court in the present appeal. The learned counsel Mr. R.K. Thanvi, Senior Advocate vehemently argued that the plaintiff by way of the present partition suit claimed one-third share in the property in question and, therefore, to the extent of the share of the plaintiff, the property in question may be protected so that, in case, if the suit is decreed in favour of the plaintiff, the plaintiff would get one-third share in the suit property.

Having heard the learned counsels for the parties and upon perusal of the material available on record, including the reasons assigned by the learned Trial Court in the impugned order dated 19.01.2015 for granting the temporary injunction application filed by the respondent-plaintiff, this Court is of the opinion that the present appeal of the appellants-defendants deserves to be partly allowed. The entire blanket stay order except to the extent of dispossession of the plaintiff-respondent from the residential portion of the suit property which has been protected by the learned Trial Court, modification of which is neither necessary nor called for in the present appeal. It is needless to add, without going into the merits of the rival claims of the parties about there being any share of the plaintiff in the suit property or not, lest it affects the trial of the partition suit, the alienation and development of the land in question, if any made, during the pendency of the trial, always remains subject to the decision of the suit as per Section 52 of the Transfer of Property Act. Since the defendants, who are the close relatives of the plaintiff, being father and son and real brother of the plaintiff, have undertaken through their learned counsel that they would not have any serious objection to the right of residence of the plaintiff in the residential portion of the suit property, therefore, that part of the impugned order does not require any modification in view of the undertaking extended by the defendants through their counsel and the same deserves to be maintained indisputably during the trial.

However, restraining the defendants from dealing with the suit property in any manner during the course of the trial, which may take long time, is not found justified. However, the remaining portion of the impugned order not allowing the defendants from dealing with the suit property even for repairing, renovation, alienation etc. is not found justified. If the present suit is ultimately dismissed by the learned Trial Court, not allowing the defendants from dealing with the suit property for a long period may not be adequately compensated by the plaintiff. However, on the other hand, if the suit is decreed and her share in the suit property has to be given, either the share in the property itself or the monetary terms thereof can always compensate the plaintiff. This is coupled with the rider that the construction, development and alienation of the suit property would always remain subject to the pendency of the suit, is the adequate protection to the plaintiff in the present case.

Therefore, the present appeal deserves to be partly allowed and except to the extent of her right of residence in the residential portion situated over the said suit property, the remaining portion of the impugned order dated 19.01.2015 restraining the defendants from dealing with the said suit property deserves to be vacated. Ordered accordingly.

Accordingly and in view of the above, the present Misc. Appeal filed on behalf of the appellants-defendants-Bijai Singh @ Vijay Singh & Anr. is partly allowed. No costs. A copy of this order be sent to the Trial Court concerned and to the parties concerned forthwith.