Saroj And Others vs Jai Singh And Others

Rekha Borana, J

The present appeal has been preferred against the order dated 29.05.2023 passed by the Additional District Judge No.7, Jodhpur Metropolitan in Civil Misc. Case No.163/2022 (N.C.V. No.453/2022) whereby the application under Order 39 Rules 1 & 2 read with Section 151, CPC as preferred by the plaintiffs has been allowed.

Vide the order impugned, the defendants have been restrained from alienating or transferring the property and to maintain status quo regarding the possession and the record of the property in question. Vide the said order, defendant Nos.3 to 11 have been granted liberty to enjoy the property which is in their possession with a rider of making no material alteration in the same.

The present appeal has been preferred on behalf of defendant Nos.1 & 3 to 11. Learned Senior Counsel appearing for the appellants submits that the appellants are aggrieved by the order impugned only to the extent they have been restrained from making any material alteration in the property in question. He submits that the order impugned be modified to the extent that while maintaining the status quo order regarding the possession and record of the property in question, the defendants be permitted to use the property without any rider.

Per contra, learned counsel for the respondents submits that the order impugned is totally in consonance with the material available on record and hence, does not deserve any interference.

Heard learned counsel for the parties and perused the material available on record.

At the outset, it is relevant to note that the factum of possession of the defendants on the property purchased by them, is not disputed.

The learned Court below while deciding the issues pertaining to prima facie case, balance of convenience & irreparable injury, observed that in the present suit, no relief for possession of the property in question which has been sold out to defendant Nos.3 to 11 has been made and further, no prayer qua their ejectment has also been made. The Court further observed that the defendants are in possession of the property by virtue of the registered sale deeds. The Court further recorded a prima facie finding that plaintiff Jai Singh entered into a settlement with the defendants and in terms of the said settlement/partition deed, Jai Singh is estopped and cannot resile from the same, now at this stage.

So far as the above finding regarding the settlement having been entered into by plaintiff Jai Singh in favour of the defendant purchasers is concerned, the execution of the same has not been disputed by the plaintiff. The only averment on behalf of the plaintiff is that the said settlement was never acted upon and hence, the defendants cannot now claim any advantage out of the same.

This Court is of the clear opinion that once the execution of the settlement/partition deed is not disputed, the fact of the same having been acted upon or not is a fact which can be considered only after the adjudication of the issue framed qua the same and the evidence being led on the same. Prima facie, the finding of the Court below to the effect that after having executed a settlement deed, plaintiff Jai Singh cannot resile from the same and is estopped from raising any grievance against the user of the property by the defendants in terms of the said settlement deed, being totally in consonance with the material i.e. the alleged settlement deed, does not deserve any interference.

In view of the same, this Court does not find any ground to interfere with the order impugned except to the effect whereby the appellants have been restrained from making any material alteration on the property in question. Once it is admitted on record that the appellants are in possession of the property by virtue of registered sale deeds in their favour and that too, in the knowledge of the plaintiff, further substantiated by the settlement deed in their favour, they cannot be restrained from user of the property.

Therefore, that part of the order impugned is modified only to the extent that the appellants shall be entitled to use the property without any encumbrances. However, it is made clear that if the appellants raise any new/further construction or make any material alteration in the property in question, the same shall be subject to the decision of the suit in question and they shall not be entitled to claim any cost incurred qua the said construction.

With the above observations, the present appeal is disposed of.

Stay petition and all pending applications, if any, stand disposed of.