Chandraveer Singh vs Saubhagya Singh

This appeal under Order XLIII, Rule 1(r) CPC is directed against the order dated 24.08.2016 passed by the trial court, whereby the application filed by the respondents under Order XXXIX, Rule 1 and 2 CPC has been allowed and injunction has been granted in favour of the respondents-plaintiffs.

The suit for partition, declaration and permanent injunction was filed by the respondents for properties indicated in para-4 of the plaint belonging to Late Rao Sawai Prithvi Singhji. It was, inter alia, claimed in the plaint that Late Rao Sawai Prithvi Singhji was Thikanedar of Bijoliya, who had four sons - Kesari Singh, Goverdhan Singh, Madan Singh and Vijay Singh. It was claimed that Rao Sawai Prithvi Singhji died in the year 1913 and by order dated 22.09.1959, the Jagir Commissioner, Rajasthan, Jaipur, declared the list of personal properties of Late Rao Sawai Prithvi Singhji, which properties belong to the Hindu Undivided Family. The plaintiffs made a reference to a suit filed by the defendant- Chandraveer Singh and his mother in the year 1983, which came to be decided in the year 2001 and it was submitted that the said suit was confined to Govind Vilas, Mukut Mahal and Panera situated in Garh Bijoliya and was based on agreement dated 14.04.1968. It was indicated that against the decree dated 01.11.2001 passed by the trial court, first appeal & second appeal were dismissed and the Special Leave Petition by the Supreme Court filed by the plaintiffs ultimately came to be decided against them on 24.07.2015. It was alleged that the defendant in the garb of execution of the decree, was seeking to take possession of the property beyond the decree and that rest of the properties had not been partitioned. Based on the alleged exclusive possession, plea of adverse possession was also raised and ultimately it was prayed in the suit as under:- "VERNACULAR MATTER OMITTED"Alongwith the suit, an application under Order XXXIX, Rule 1 and 2 CPC was filed.

The appellant herein filed written statement, inter alia, relying on an agreement/compromise dated 14.01.1958 executed between Goverdhan Singh and Madan Singh and another agreement dated 14.04.1968 executed between Chandraveer Singh and Vijay Singh. It was also claimed that in the earlier suit filed between the parties, the issue pertaining to the nature of the properties already stood concluded. It was alleged that the plaintiffs, after vacating the premises, regarding which, the decree dated 01.11.2001 was passed, had occupied other part of the Palace, which part was indicated in green colour in the map filed alongwith the written statement. It was claimed that except for the reoccupied portion marked in green colour in the map, the defendant was in possession of the suit property. Counter-claim seeking possession of the area marked in green in the map was also filed.

Reply to the TI application was also filed and averments made therein were denied.

The trial court by its impugned order dated 24.08.2016 after noticing the rival contentions indicated its finding as under:- "VERNACULAR MATTER OMITTED"A look at the above findings would indicate that the trial court came to the conclusion that the relief claimed in the present suit was different from the earlier suit between the parties, the title cannot be decided without seeking evidence from the parties, defendant has accepted the possession of the plaintiffs and relying on para-17 of the reply to the TI application and the fact that a counter claim seeking possession of the property marked in green had been filed by the defendant, the trial court found prima facie case in favour of the plaintiffs and granted injunction as under:-

"VERNACULAR MATTER OMITTED"It is submitted by learned counsel for the appellant that the trial court committed error in recording a finding of existence of prima facie case in favour of the plaintiffs. It was submitted that the plea raised by the appellant and the material available on record has not been considered at all and only by way of cursory observations, the finding has been arrived at. Further submissions were made that the trial court has formed its opinion about the possession of the plaintiffs on account of para-17 of the reply and the prayer made in the counter claim seeking possession. However, the said assertion in para-17 and the prayer made in the counter claim was confined to a small portion of the suit property, however, an injunction has been granted qua the entire property, which has been made the subject matter of the suit, qua which, it is not even the case of the plaintiffs that they were in possession and in fact they are not in possession of the said part of the suit property and in grab of the injunction granted by the trial court, now they were seeking to interfere in the possession of the appellant and, therefore, the order impugned deserves to be quashed and set aside.

With reference to the findings recorded between the parties in the earlier suit as well as various pleadings between the parties, it was sought to be emphasized by counsel for the appellant that except for the part of the suit property, which the defendant after the execution of the earlier decree dated 01.11.2001, reoccupied, they were not in possession of any part of the suit property and, therefore, the injunction as granted by the trial court deserves to be quashed and set aside.

It is submitted that the very fact that the plaintiffs have claimed a declaration based on adverse possession necessarily means that the title of the appellants is conceded by them and, therefore, the respondents have no right to claim the injunction against the true owner.

Learned counsel appearing for the respondents vehemently opposed the submissions made by learned counsel for the appellant. It was submitted that the appellant-defendant was seeking to assert right in the entire suit property based on the decree dated 01.11.2001, which was confined to Govind Vilas, Mukut Mahal and Panera of Garh Bijoliya. It was submitted that there is no dispute that the property in question belonged to Late Rao Sawai Prithvi Singhji and, therefore, the appellant cannot claim exclusive title over the suit property.

Submissions were made that the documents dated 14.01.1958 and 14.04.1968, being relied on by the defendant are not admissible in evidence. Further submissions were made that the plaintiffs since beginning i.e. even when the written statement to the earlier suit was filed have been asserting their possession qua the entire suit property and as the earlier suit was confined to three properties, the said decree in the said suit cannot preclude the plaintiffs from seeking partition of the rest of the property.

It was submitted that the possession of the plaintiffs, which is evident from the counter claim filed by the appellants seeking possession of a part of the suit property. It was also submitted that the trial court was justified in restraining the appellant from interfering in possession of the plaintiffs and to deal with the suit property and, therefore, the order impugned does not call for any interference.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

As already noticed hereinbefore, the trial court while deciding the issue pertaining to prima facie case, relied on para- 17 of the reply filed by the appellant to the application under Order XXXIX, Rule 1 and 2 CPC for coming to the conclusion that the possession of the plaintiffs on the suit property was admitted. Para-17 of the reply reads as under:- "VERNACULAR MATTER OMITTED"A bare reading of the above portion of the reply would indicate that the appellant by filing a map alongwith the counter claim specifically indicated by green colour, the portion, which according to the appellant was in possession of the plaintiffs. However, the trial court as noticed hereinbefore, by merely relying on the said assertion in the reply, has while granting the injunction has granted relief identical to the relief as claimed in the plaint pertaining to the entire Garh Bijoliya other than Govind Vilas, Mukut Mahal and Panera and other fourteen suit properties, regarding which, absolutely no assertion whatsoever had been made in the reply to the TI application admitting the possession of the plaintiffs.

The trial court failed to consider the most crucial aspect of the matter which was prerequisite before granting injunction i.e. the possession of either of the parties over the entire suit property, which includes Garh Bijoliya as well as fourteen other suit properties. The failure of the trial court to consider the said aspect and by merely relying on reply, which apparently pertained to a minuscule part of the suit properties clearly vitiates the order passed by the trial court. The trial court, as would be noticed from the findings reproduced hereinbefore, has without even adverting to the foundational facts while considering the aspect pertaining to the prima facie case of the plaintiffs has by merely indicating that all aspects would only be considered after evidence is led by the parties has jumped to a conclusion regarding availability of a prima facie case. The said approach of the trial court without even considering the plea raised by the defendants in the written statement also cannot be sustained.

However, as the trial court has not dealt with the matter in a proper/correct perspective and contrary to the settled practice, it would be appropriate to remand back the matter to the trial court to decide the application filed by the plaintiffs under Order XXXIX, Rule 1 and 2 CPC afresh.

Consequently, the appeal filed by the appellant is partly allowed. The impugned order dated 24.08.2016 passed by the trial court is quashed and set aside. The matter is remanded back to the trial court to re-decide the application seeking temporary injunction in light of the observations made hereinbefore after hearing the parties. The trial court shall decide the application within a period of six weeks from the date a certified copy of this judgment is placed before it.

Till the matter is re-decided by the trial court, the parties shall maintain status quo regarding the suit property and the consequence will abide by the final directions issued by the trial court on the application.

It is made clear that the trial court will re-decide the application only in light of observations made hereinbefore, however, it shall not be influenced by the fact that the order passed earlier stands set aside by this Court.

No order as to costs.