Sadhna and Others vs Chandrakanta and Others

Vijay Bishnoi, J.�This misc. appeal is directed against the order dated 19.05.2012 passed by District Judge, Dungarpur on an application under Order 39 Rule 1 and 2 read with section 151 of Code of Civil Procedure.

Brief facts of the case are that respondent Nos. 1 to 3 filed a suit for cancellation of sale deed and permanent injunction against the present appellants while alleging that the land of Khasra No. 1007 situated in City, Dungarpur is in a joint ownership of them and the respondent Nos. 4 and 5, who happened to be the son and daughter of deceased Chandra Govind. It is alleged that though the land in question was in joint ownership of the appellants and the respondent Nos. 4 and 5, the respondent Nos. 4 and 5 illegally sold the said land to the appellants. It is contended in the plaint that since the disputed land has not been partitioned till date, the alleged sale-deed executed by respondent Nos. 4 and 5 in favour of the appellants is illegal and the same may be cancelled.

Along with the suit for cancellation of sale-deed, the respondent Nos. 1 to 3 also filed an application under Order 39 Rule 1 and 2 read with section 151 of the Code of Civil Procedure and prayed that the appellants may be restrained from alienating the said disputed property and also be restrained from raising any construction on the said disputed property till the disposal of the suit.

The learned court below, after hearing both the parties, has allowed the said application and by way of temporary injunction, restrained the appellants from alienating the property in question and from raising any construction on the said disputed property till the disposal of the suit. Being aggrieved with this, the appellants have preferred this misc. appeal.

Learned counsel for the appellants has argued that the appellants are ready to abide by the conditions of not alienating the disputed property in favour of any other person till the disposal of the suit, however, the learned court below has erred in restraining them from raising constructions on the disputed property. The learned counsel for the appellants has further contended that the appellants are ready to give an undertaking to the effect that in case the suit filed by the respondent Nos. 1 to 3 is decreed in their favour, the disputed land will be handed over to them after removing all constructions. The learned counsel for the appellants has further argued that the appellants have investigated a huge amount in purchasing the land and they are bona fide purchasers, therefore, restraining them from raising construction on the said property will cause irreparable loss to them.

Per contra, the learned counsel for the respondent Nos. 1 to 3 has argued that the learned court below has found a prima facie case in favour of respondent Nos. 1 to 3 and has also observed that if the appellants are allowed to raise constructions on the property in question, the same will result in change of the nature of property and the respondent Nos. 1 to 3 will suffer huge loss. It is further contended by the learned counsel for the respondents that the court below, after taking into consideration the facts and circumstances of the case, has rightly passed the impugned order and not committed any illegality in restraining the appellants from raising any construction on the disputed land.

The learned counsel for the respondent Nos. 1 to 3 has placed reliance on decisions of Hon''ble Supreme Court as well as of this Court in Ramdas Vs. Sitabai and Others, , Ram Singh & Ors. v. Amra and Ors., RLW 1995(2) (Raj.) 638 and Bhanwar Lal & Anr. v. Board of Revenue, Ajmer & Ors., 2012(3) CDR 1578 (Raj.).

Heard learned counsel for the parties and perused the impugned order as well as the record.

The argument of the learned counsel for the appellants that the appellants may be allowed to raise construction on the disputed property during the pendency of the suit is considered but for rejection only.

As per the case set up by the respondent Nos. 1 to 3, the land in dispute is joint ownership property and till the filing of suit no partition has taken place between the co-sharers. It is contended by the respondents that every inch of disputed land belongs to each co-sharer and no co-sharer can be allowed to change the nature of land by raising construction before partition during the pendency of the suit. Though the authority of the respondent Nos. 4 and 5 to sell the disputed property to the appellants is to be examined by the court below after taking into consideration the evidence adduced by the parties but at this stage, it cannot be said that if the appellants are allowed to raise construction on the disputed property, resulting in changing the nature of the land, the respondents will not suffer irreparable loss.

The Hon''ble Supreme Court in Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, has observed that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes putting up constructions on the said property. In para 10 of the aforesaid judgment, the Hon''ble Supreme Court has observed as under:

"Be that as it may, Mr. Sachar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of the property by putting up construction as also by permitting the alienation of the property, whatever may be the conditions on which the same is done. In the event of the appellant''s claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored."

In the present case, there is a dispute regarding authority of the respondent Nos. 4 and 5 to alienate the disputed property, which is alleged to be joint. If the appellants are allowed to change the nature of the property, it cannot be denied that the respondent Nos. 1 to 3 will suffer irreparable loss. In the event of the claim of the respondent Nos. 1 to 3 being found baseless ultimately, it is always open to the appellants to claim for the loss suffered, if any, in this regard. The facts of the present case do not make out any extraordinary ground for permitting the appellants to put constructions on the disputed property. Hence, no case for interference is made out.

Resultantly, this appeal being devoid of force is dismissed. Record of the lower court be sent forthwith.