Shailender Singh vs Randhir Singh

L.N. Mittal, J.—Plaintiff-Shailender Singh, being aggrieved by judgment dated 14.05.2013 (Annexure P-5) passed by the lower appellate Court, has approached this Court by way of instant revision petition filed under Article 227 of the Constitution of India assailing the said judgment. Plaintiff-petitioner has filed suit against his father Randhir Singh defendant-respondent alleging that in family settlement in the year 2004, the plaintiff gave 5 acres agricultural land of his share in Hindu Undivided Family (HUF) property and in lieu thereof, the suit house, which was owned by defendant respondent, was given in exchange to the plaintiff, who became owner in possession thereof. The plaintiff earlier filed a suit for possession by partition of the ancestral land and another house as well as the suit house. During pendency of that suit, family settlement-cum-agreement dated 12.06.2010 was arrived at and according to it, the defendant handed over possession of the suit house to the plaintiff as owner in exchange of the agricultural land measuring 5 acres. However, the defendant later on turned dishonest and did not get the suit house transferred in the name of plaintiff. On the other hand, the defendant and his three other sons tried to dispossess the plaintiff from the suit house and threatened to alienate the same. The plaintiff by filing suit has sought declaration that he is owner in possession of the suit house. Plaintiff has also claimed permanent injunction restraining the defendant from interfering in plaintiff''s possession over the suit land and from alienating the same. Temporary injunction to the same effect during pendency of the suit was also claimed by the plaintiff.

The defendant controverted the averments of the plaintiff and contested the suit and the application for temporary injunction. It was pleaded that the plaintiff has no right, title or interest in the suit property. The plaintiff is neither owner nor co sharer nor in possession thereof except that a room in the suit house was given by the defendant to the plaintiff as licensee for one month only so that the plaintiff could arrange alternative accommodation. Since the plaintiff failed to vacate the said room, the defendant had already filed suit for mandatory injunction against plaintiff regarding the said room. It was pleaded that the defendant is exclusive owner of the suit house, being his self-acquired property having been purchased by him. The plaintiff in the year 2004 shifted to Surat (Gujarat) along with his in-laws after taking Rs. 24,00,000/- as value of his share in entire moveable and immoveable property and started business at Surat. However, the plaintiff in the year 2011 closed his business at Surat due to heavy loss and wanted to settle at Panipat and therefore, one room in the suit house was given to him as licensee for a month.

Learned trial Court vide order dated 04.02.2013 Annexure P-4 allowed the plaintiff''s prayer for temporary injunction and directed both the parties to maintain status quo regarding the suit house. However, appeal against the said order preferred by the defendant has been allowed by learned lower Appellate Court vide judgment dated 14.05.2013 Annexure P-5 and application for temporary injunction filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has filed this revision petition to challenge judgment Annexure P- 5.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner reiterated the version of the petitioner-plaintiff as noticed hereinbefore. However, the same cannot be accepted at this stage. The plaintiff''s whole version and conduct is completely unreliable. According to plaintiff''s version, the suit house was given to him in the year 2004 in exchange of 5 acres land of his share in HUF property. If it were so, it is not explained why he included the suit house in the partition suit instituted by him for partition of ancestral land and another house. According to the plaintiff''s version, he had become absolute owner of the suit house in the year 2004, but nevertheless, he included the suit house in partition suit instituted by him subsequently, thereby belying his aforesaid version.

The plaintiff''s version is also that family settlement was arrived at on 12.06.2010 during pendency of his aforesaid partition suit. If it were so, the plaintiff should have got the said compromise recorded in the said suit as per provisions of Order 23 Rule 3 of the CPC (in short, CPC). However, the said compromise was not got recorded in the said suit. Consequently, the plaintiff prima facie cannot institute the instant fresh suit on the basis of alleged settlement dated 12.06.2010.

In addition to the aforesaid, the plaintiff also instituted another suit no. 170 in the year 2011. The same has been concealed in the plaint Annexure P-1. Due to concealment of the said material fact in the plaint, the plaintiff is not entitled to discretionary relief of temporary injunction. Moreover, the alleged family settlement dated 12.06.2010 was admittedly not mentioned in civil suit no. 170 of 2011 instituted after alleged settlement dated 12.06.2010. This circumstance again makes the alleged settlement very suspicious and unreliable. Besides it, the instant suit is also, prima facie, barred by Order 2 Rule 2 CPC inasmuch as the relief claimed in the instant suit on the basis of family settlement dated 12.06.2010 could also have been claimed in previous suit no. 170 of 2011 instituted by the plaintiff. The said suit was dismissed as withdrawn as submitted by counsel for the plaintiff-petitioner. In view thereof, the instant second suit is also barred by Order 23 Rule 1(4) CPC. Thus examined from any angle, the plaintiff-petitioner has no case for grant of temporary injunction. He has miserably failed to make out the necessary three ingredients of prima facie case, balance of convenience and irreparable loss and injury, for grant of temporary injunction. There is, therefore, no perversity, illegality or jurisdictional error in impugned judgment of the lower Appellate Court in dismissing plaintiff''s application for temporary injunction, so as to call for interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision petition is completely meritless and is accordingly dismissed in limine. However, nothing observed hereinbefore shall be construed as expression of pinion on merits of the suit.