Vimal Kumar Suri and Others vs Chanchal Bhaseen and Others

Sheel Nagu, J.—This petition under Article 227 of the Constitution of India assails the order dated 22/09/2014 passed in Miscellaneous Civil Appeal No. 10/2014 by the 12th Additional District Judge, Gwalior rejecting the prayer for temporary injunction made by the plaintiff on the ground that no prima facie case is made out. The said rejection has been upheld by the appellate court.

The basic facts giving rise to the instant case are that plaintiffs brought suit seeking declaration of title over the suit house in favour of the plaintiffs as well as defendant No. 3. The plaintiff further sought declaration of the sale deed dated 04.08.1978 to be void and restraining the defendants No. 1 to 5 from alienating the suit house. The suit property was allotted to Late Jaichand Suri, the grandfather of defendants No. 3 to 5. This allotment was pursuant to application submitted by Late Jaichand Suri before the Assistant Settlement Commissioner, Government of India after coming from Pakistan to India (Gwalior) at the time of partition during 1947. The consideration of Rs. 3653.19 was fixed by the authority, out of which Rs. 3346.81 was adjusted from the claim amount received by Late Jaichand Suri on 23.01.1961 and the remaining amount was paid by said Late Jaichand Suri. Consequently sale certificate was issued. The amount deposited by Late Jaichand Suri as part consideration was out of the income of Hindu Undivided Family. The father of the plaintiffs used to run a cycle shop in More Bazar, Gwalior whereas Shriram Suri the father of the defendants No. 3 to 5 was a doctor by profession. The income derived by the father of the plaintiffs and the father of the defendants No. 3 to 5 was used in paying the above said consideration. On 06.10.1960 Late Jaichand Suri died. The legal heirs of Late Jaichand Suri filed an application before the Assistant Settlement Commissioner which was not objected to. These legal heirs as on 02.11.1961 were Shivlal, Rameshwarlal, Shriram, Shrichand Suri, Parmeshwar Lal (sons), Mayadevi, Koradevi, Gomtibai, Hariom, Indrakumari (daughters) and Smt. Malan Devi (wife) of Late Jaichand Suri. On the request of all the said legal heirs the sale certificate dated 17.05.1978 which was registered on 19.05.1978 was issued in the name of eldest legal heir i.e. Malan Devi, after obtaining consent of the other legal heirs. Thus, despite the name of Malan Devi mentioned as purchaser and owner of the suit house in the sale certificate the nature of the property being joint ownership continued to subsist. Incidentally Malandevi out of love and affection brought her maternal grandson who is also the husband of defendant No. 1 and father of defendant No. 2, from Dehradun to Gwalior and allowed him to reside in a portion of the suit house. On 08.03.2014, the defendants No. 1 and 2 decided to sell the suit house. On coming to know of this intention, the plaintiffs objected. The defendants No. 1 and 2 informed the plaintiffs that in the year 1978 the suit house was sold by Malandevi in favour of Parvesh Chandra (maternal grandson of Malandevi). On making query the plaintiffs found that the sale as alleged by the defendants No. 1 and 2 of year 1978 was made for a paltry sum of Rs. 8000/- when the market value of the property was about 70,000-75,000. The plaintiffs claiming themselves to be the joint owners on the basis of suit house being HUF property, filed the suit in question claiming title, declaration of the sale deed of the year 1978 to be void and restraining the defendants from alienating the suit house.

Per contra, the defendants inter alia disclosed in the written statement that the sale deed dated 04.08.1978 was sought to be declared as null and void by the plaintiffs by instituting Civil Suit No. 47A/1978 (new number 96A/2004) in which Rameshwar Lal (father of the present plaintiffs) was party. The written statement further informed that on 03.08.2004 the said civil suit was dismissed. The attempt to get the said suit restored to its original number also failed by dismissal of MJC No. 19/2004 on 10.02.2006. Against this decision an appeal registered as MCA No. 08/2006 was also filed which suffered dismissal on 20.07.2006 by the Sixth Additional District Judge, Gwalior. The rejection by the appellate court was further challenged in Writ Petition No. 6010/2006 which was dismissed on 18.08.2009. The defendants thus disclosed that by suppressing these material facts the plaintiffs have filed the present suit and that the suit property belongs exclusively to the plaintiffs who are in possession of the same.

Learned counsel for the rival parties are heard on the question of admission.

The trial court after perusing the material available before it in shape of plaint and written statement found that there was no prima facie case made out as the plaintiffs failed to establish their title and possession over the property even on prima facie basis.

Learned counsel for the rival parties have placed reliance on the decisions of this Court in the cases of Mukesh Vs. Deonarayan and Others, AIR 1987 MP 85 : (1987) JLJ 572 ; Leela Purohit and Co. (M/s.) and others Vs. Arun Agarwal and others reported in 2002 RN 54 ; Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2011) 1 CTC 854 : (2010) 7 JT 529 : (2011) 1 RCR(Rent) 1 : (2010) 7 SCALE 428 : (2010) 8 SCC 329 : (2010) 8 SCR 836 : (2010) AIRSCW 6387 ; Anil Kumar Vs. Thekardum, AIR 2006 MP 73 : (2005) 3 MPLJ 60 ; and on the decision of Apex Court in the case of Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, (1993) 3 JT 238 : (1993) 2 SCALE 772 : (1993) 3 SCC 161 : (1993) 3 SCR 522 ; Khatri Hotels Private Limited and Another Vs. Union of India (UOI) and Another, AIR 2011 SC 3590 : (2011) 10 JT 541 : (2012) 1 RCR(Civil) 676 : (2011) 10 SCALE 190 : (2011) 9 SCC 126 : (2011) AIRSCW 5052 and Mohd. Yunus Vs. Mohd. Mustaqim and Others, AIR 1984 SC 38 : (1983) 2 SCALE 1013 : (1983) 4 SCC 566 : (1984) 1 SCR 211 : (1984) 16 UJ 132 .

This court refrains from entering into the prolixity of facts and citations in view of the nature of order being passed infra.

The ultimate object of seeking and granting temporary injunction is to ensure preservation of the subject matter in question to be available without getting polluted by the vice of alienation, damage or wastage etc. for achieving the ultimate object of satisfying the decree which may ultimately be passed. The object is also to prevent multiplicity of the proceedings, however this aspect is taken care of by the doctrine of lis pendens as manifested in Section 52 of the Transfer of Property Act.

The prayer for temporary injunction in law is made out when three basic ingredients, i.e. prima facie case, balance of convenience and irreparable loss are established by the plaintiff to exist in their favour. The first and the foremost ingredient is the existence of a prima facie case which if not made out renders the other two ingredients inconsequential.

In the instant case, Court has found no prima facie case in favour of the plaintiffs. This factual finding cannot be found fault with. However the fact remains that the suit is pending and has not been dismissed for any of the reasons contained in Order 7 Rule 11 CPC including absence of cause of action. Thus, the possibility, however remote it may be, of decree being passed in favour of the plaintiff cannot be ruled out. Thus, the need arises for preserving the subject matter of the suit i.e. the house in question from being alienated or damage.

Since prima facie case has not been established by the plaintiffs, this Court, in the limited supervisory jurisdiction under Article 227 of the Constitution of India, when no jurisdictional error appears to have been committed by the trial court, does not intend to interference in the impugned order. However to ensure that the suit property is not alienated without informing the prospective buyer from the pendency of the suit, this Court, is inclined to direct that any alienation if made of the suit house, any sale deed if executed shall specifically contain the condition of the pendency of this suit and that the prospective buyer shall run the risk of being deprived of the property in question in case the suit is decreed in favour of the plaintiffs.

With the above said observation, this petition under Article 227 of the Constitution of India stands disposed of, sans cost.