Tularam vs Lalit

This Petition has been filed under Article 227 of the Constitution of India being aggrieved by the order dated 07.12.2022 passed by the 1st Additional District Judge, Sakti, District Janjgir-Champa in Miscellaneous Civil Appeal No.03/2021 whereby, the order dated 28.06.2021 passed by the Civil Judge, Class-2, Jaijaipur, District Janjgir-Champa in Civil Suit No.9-A/2021 was set aside and the application filed under Order 39 Rules 1 & 2 CPC was partly allowed and the Petitioner/Defendant No.1 has been restrained from alienating the suit property till disposal of the suit.

Brief facts of the case are that Respondent No.1/Plaintiff had filed a suit for partition based on which, the Petitioner had categorically raised an objection that Respondent No.1/Plaintiff had already sold his part of the share as during the life time of the father of the Respondent No.1/Plaintiff Accheram, an oral partition was already made. The trial Court has reached to the conclusion that there is no material to demonstrate that in any manner, Respondent No.1/Plaintiff has sold the suit property and there is already a provision under Section 52 of the Transfer of Property Act, 1882 for the same, therefore, no further direction is needed and accordingly, the application was dismissed. In the Appeal, by the impugned order, the application has been allowed and the Petitioner was restrained to alienate the suit property till disposal of the suit.

Shri Chandra, learned Counsel for the Petitioner submits that the order impugned is bad in law and erroneous as during the lifetime of Accheram, the father of Respondent No.1/Plaintiff, the ancestral lands were already partitioned between Accheram and Petitioner/Defendant No.1 which were recorded in the name of late Dashrath after whose death, the names of Accheram and Petitioner/Defendant No.1 were mutated in the revenue records. He further submits that the learned appellate Court has erred in reversing the well reasoned order passed by the trial Court and prays to quash the order impugned by allowing the Petition.

Per contra, Shri Thakur, learned Counsel for the State submits that State is a formal party.

Heard learned Counsel for the parties and also perused the documents annexed with the Petition carefully.

It is well settled that during the pendency of the suit, normally, the status quo of the suit property has to be maintained or otherwise any extraordinary ground is required to be made out for permitting to put up construction and alienate the suit property. In the matter of Maharwal Khewaji Trust (Regd.), Faridkot vs. Baldev Dass reported in (2004) 8 SCC 488, in para-10, it was held as under:-

“10. Be that as it may, Mr. Sachhar 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 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.”

The Supreme Court, while considering the Appeal against the grant or refusal of temporary injunction in the case matter of Wander Ltd. And Another vs. Antox India P. Ltd. reported in 1990 (Supp) SCC 727, dilated on the powers of appellate Court and held at para-14, as under:-

“14. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph (1960) 3 SCR 713:AIR 1960 SC 1156:

... These principles are well established, but as has been observed by Viscount Simon  in  Charles  Osention  &  Co.  v. Johnston (1942 AC 130) the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.”

Reverting back to the facts of the present case, in view of the aforesaid principles, as the appellate Court has only restrained the Petitioner/Defendant No.1 from alienating the suit property, therefore, the discretion exercised by the said Court is found just and proper, which does not call for any interference.

Accordingly, the instant Petition is bereft of any substance and is hereby dismissed.