Smt Mewa Devi & ors. vs Babulal & anr.

By order dated 21st September, 2016, the trial Court declined the application under Order 39 Rule 1 and 2 CPC, of which the appellants are aggrieved of.

Briefly, the essential skeletal material facts necessary for appreciation of the grievance raised are that the appellant-plaintiff No. 1-Smt. Meva Devi, is wife of Shri Pokharram, who is defendant/non-appellant No.2. The appellant/plaintiff No. 1, along with her children has instituted the suit proceedings claiming right in the ancestral property to the extent of their share i.e. 7/8. It is pleaded case of the appellants that the suit proceedings have been instituted for cancellation of the sale-deed dated 25th August, 2010, to the extent of their share i.e. 7/8.

From the materials available on record, as taken note of by the Court below, it is further reflected that the proceedings are also pending before the Court of Additional District Magistrate (ADM) Shrimadhopur, District Sikar (Raj.), with reference to the mutation proceedings instituted by the plaintiff/appellants to the extent of their share i.e. 7/8, in the agricultural land involved herein.

Learned counsel for the appellants-Mr. Akhil Simlote, reiterating the pleaded facts and grounds of the memo of appeal, asserted that the trial Court committed a gross error in declining the application for grant of Temporary Injunction though the application was submitted by a limited ground that the defendant/non-appellants be restrained from alienating the subject property any further. However, the trial Court declined the application only on the ground that the application was not maintainable before the trial Court and that the matter could be adjudicated upon only by the Revenue Court.

According, to the learned counsel, the trial Court declined the application for grant of Temporary Injunction while recording a finding as to the maintainability of the suit proceedings; hence, the impugned order is bad in eye of law. In support of his submissions, reliance has been placed on the opinion in the case of Peer Gulam Naseer Vs. Peer Gulam Jelanee: 1988(2) RLR 871.

I have heard the learned counsel for the appellants and with his assistance perused the materials available on record as well as gave my thoughtful consideration to the submissions at Bar, so also carefully scanned the impugned order dated 21st September, 2016, declining the application.

A glance of the impugned order would reveal that the Court below exercised the discretion in the backdrop of the pleadings of the parties and opinions as referred to and relied upon. The trial Court has specifically examined the application under Order 39 Rule 1 and 2 CPC, on the well settled principles as to prima facie case, irreparable loss and balance of convenience.

Indisputably, the trial Court considered the factual aspect of the matter as reflected from the pleadings and materials available on record, which reflected that the plaintiff/appellants have also instituted proceedings before the Court of Additional District Magistrate (ADM), Shrimadhopur, District Sikar (Raj.), with reference to mutation proceedings against the non-appellants to the extent of their share i.e. 7/8 in the subject agricultural land. The sale-deed executed on 25th August, 2010, is sought to be cancelled in the suit proceedings instituted to the extent of their share i.e. 7/8, in the agricultural land.

The trial Court taking note of the pleadings of the parties and materials on record as well as in the backdrop of the contemplation under Section 187 and 207 of the Rajasthan Tenancy Act, 1955 (for short, ''the Act of 1955''), observed that in substance the grievance of the appellants was with reference to the sale of the subject agricultural land without determination of their rights therein, and therefore, the proceedings have been rightly instituted before the Revenue Court and relief on that aspect can be granted by the Revenue Court.

On a detail consideration of the singular facts of the case at hand, the Court below also recorded a finding, in negative, on the principle of prima facie case so also to irreparable loss and balance of convenience, while declining the application for grant of Temporary Injunction for the reasons and recording in detail.

The main trust of the claim of the plaintiff/appellants is that the subject land is an ancestral property and the name of nonappellant No.2-Shri Pokharram, who is husband of plaintiff/appellant No.1 and father of plaintiff/appellants No. 2 to 7, was entered in the Revenue Records ignoring their claims to the extent of their share i.e. 7/8. Further, the assailment of the illegality, validity and correctness of the sale-deed is only to the extent of their share i.e 7/8.

The Court below found no error while declining the application for grant of Temporary Injunction, in view of the grievance to the extent of their share i.e. 7/8, in the subject land that has been sold on 25th August, 2010. The subject land in dispute is also not in possession of the appellants.

In the case of Peer Gulam Naseer (Supra), a Coordinate Bench of this Court, examined the controversy in the backdrop of the factual matrix wherein serious questions raised in the case, were adjudicated upon by the Appellate Court, in the proceedings against an order under Order 39 Rule 1 and 2 CPC, with reference to performance of religious duties of Sajjadanasin and Mutwalli of the Dargah. The opinion, referred to and relied upon, has no application to the facts of the instant case at hand.

This Court finds no error/illegality much less a gross error/illegality so as to call for any interference by this Court in the impugned order dated 21st September, 2016. However, it goes without saying that the trial Court has declined the application of the appellants under Order 39 Rule 1 and 2 CPC, and therefore, the apprehension that the issue of maintainability of the suit has also been adjudicated; is misconceived.

For the reasons and discussions aforesaid, the Misc. Appeal is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed. Stay application also stands closed. Ordered accordingly. No costs.