Rajkumar Pokharna vs Satyanarayan and Others

Atul Kumar Jain, J.—Order dated 22.04.2014 passed by ADJ No. 1, Beawar District Ajmer in Civil Misc. Case No. 6/2014 titled as Satyanarayan v. Ramswaroop and Ors. under Order 39 Rule 1 and 2 CPC read with Section 151 CPC has been challenged in this Civil Misc. Appeal by appellant Raj Kumar who was defendant No. 5 in the Court below and in this appeal notices have been served only upon respondent No. 1/plaintiff Satyanarayan, as prayed by the appellant.

I have heard arguments of both the parties. Shop No. 18 (Private Number) in Shriram Complex, Vijay Nagar was purchased by a registered sale deed dated 03.01.2014 (registered on 10.01.2014) by the appellant from Ramswaroop S/o. Ramniwas who was defendant No. 1 in the court below Rajkumar claims to be a bonafide purchaser of the said shop but Satyanarayan plaintiff/respondent No. 1 filed the suit along with prayer for temporary injunction in which he prayed that he is son of Ramswaroop who was son of late Ramniwas and he submitted that originally the property mentioned in para 1 of the plaint measuring 605.58 Sq. yd. belonged to Ramniwas S/o. Badrilal Pareek and Ramniwas expired 45 years back at Vijay Nagar and then Ramswaroop became the ''karta'' of H.U.F. though the plaintiff Satyanarayan and defendant No. 1 to 4 each were having 1/5 share each in the property. Plaintiff Satyanarayan claimed that Shriram Complex consisting of 32 shops on the said property was constructed jointly by plaintiff and defendant Nos. 1 to 4 and it was alleged by plaintiff Satyanarayan that defendant No. 1 Ramswaroop has unlawfully sold shop No. 18 in the said complex to Rajkumar who is defendant No. 5 in the suit. Partition suit was filed by Satyanarayan in the court below along with the prayer for temporary injunction. The trial court accepted the prayer of temporary injunction filed by Satyanarayan and all the defendants were restrained in the manner that till the decision of suit No. 7/2014 none of them will be entitled to alienate the property mentioned in para 1 of the plaint and additionally they were also restrained that they will not make any demolition; modification, conversion, mortgage or create encumbrance on the said property.

Appellant Rajkumar/defendant No. 5, in this appeal has submitted that he is a bonafide purchaser of only one shop out of 32 shops and he has been unnecessarily restrained by the court below in the manner narrated above. He has further submitted that previously also one another shop was sold by Ramswaroop to Rajesh Joshi by a registered sale deed on 24.04.2013. He submits that prior to purchase of shop No. 18, he had perused the record of Nagar Palika, Bijay Nagar and found that the property in the question is in the name of Ramswaroop in the record, he also perused the file of the land conversion and found that the order of conversion was also passed in favour of Ramswaroop. He submits that only then after he purchased shop No. 18 in the Shriram Complex after making due payment of consideration. Registered sale deed dated 03.01.2014 in his favour is not in dispute. Appellant submits that from the date of the purchase, the shop in question is in his possession in the capacity of registered owner of the shop. He further submits that the plaintiff Satyanarayan had concealed the fact of sell of another shop by Ramswaroop to Rajesh Joshi and so the trial court should not have granted the equitable relief to Satyanarayan. Alternatively it has been pleaded by Rajkumar that indisputably, Ramswaroop was having at least 1/5th share in the property and accordingly, out of 32 shops in Shriram Complex he was entitled to get at least six shops out of them and so if only one shop has been sold to Rajkumar by him then such sale should not have been objected by Satyanarayan on flimsy grounds. It was also argued by the appellant that the trial court has failed to consider the fact that the son/daughter cannot claim partition in the life time of his/her father. In the sale deed it was mentioned by the father that he is selling shop for necessity of the family and so the plaintiff had no right to challenge the sale of shop made by his father in favour of the appellant.

Respondent No. 1 has strongly opposed the argument of appellant and it has been argued by the respondent that Ramswaroop had no right to sell the suit property to the appellant and so before decision of the partition suit appellant has rightly been bound down by the court below not to transfer the suit property without permission of the court along with other restrictions.

I have heard the arguments of both the parties and perused the documents submitted by the parties and I have also perused the rulings submitted by the parties. Appellant relies upon the following rulings:--

"(1) Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, .

(2) Yudhishter Vs. Ashok Kumar,

(3) 2014 (2) CDR 588 (Raj.) Mahendra Kumar v. Mohd. Saleem

(4) Pratap Vs. Shiv Shanker,

(5) Bharat Bhushan Maggon Vs. Joginder Lal and Others, "

I have respectfully gone through the aforesaid rulings.

Respondent relies upon the following rulings:--

"(1) Narayan Ramachandra Katkar and Others Vs. Arjun Bhimrao Gore and Others,

(2) Rohit Chauhan Vs. Surinder Singh and Others,

(3) Peer Gulam Naseer v. Peer Gulam Jelanee [1988] 2 RLW (Raj.) 260

(4) Barkat Khan and Another Vs. Shimla @ Seema,

(5) Shamsher Vs. Rustam and Others,

(6) Ajit Sharma v. Rampal Sharma and anr. [2007] 2 RLW (RJ) 1277"

I have respectfully perused the aforesaid rulings also.

Appellant claims to be in possession of one shop only out of 32 shops constructed in Shriram Complex and the plaintiff/respondent No. 1 had concealed the fact of sell of another shop to Rajesh Joshi. Appellant claims himself to be a bonafide purchaser and respondent No. 1 has given no explanation that why he concealed the fact of sale of another shop by Ramswaroop to Rajesh Joshi and in the circumstances of the case, prima facie case is in favour of the appellant, equity is also in favour of the appellant, balance of convenience and point of irreparable loss are also in favour of the appellant but still to avoid the future complicacies during the trial of the suit and looking to the provisions of Section 52 of transfer of property Act, the appellant deserves to be restrained to the effect that he will not be entitled to alienate or transfer the suit property in any manner to any person without written permission of the trial court till the decision of the suit. Other restrictions imposed by the trial court on the appellant are hereby removed. Appeal of the appellant is partly accepted as above.

Copy of this order be sent to the court below immediately by registered post.