Smt. Mayabai and Others vs Digambar Kumar Jain

K.K. Lahoti, J.

Defendants aggrieved by the order dated 3.8.2002 passed in Civil Suit no.33-A/2002 by 12th Additional District Judge, Jabalpur has filed the present appeal.

Appellant no.1 and respondent are closely related. The geneaological tree showing the relationship is as under :

In view of the aforesaid genealogical tree, it is apparent that Mayadevi is cousin of rest of the parties and appellants 2, 3 and respondent are real brothers.

Digambar Kumar Jain filed a suit for declaration and permanent injunction with following reliefs against the appellants :

(a) It is, therefore, prayed that a judgment and decree for mandatory injunction be passed and defendant no.1 (one) be directed to execute a fresh sale-deed in favour of plaintiff along with defendants no.2 (two) and 3 (three), as a sale-deed dtd. 11.3.2002 (eleventh of March two thousands two) executed by the defendant no.1 (one) in favour of defendant no.2 (two) was void in law being in violation of the condition of Tamliknama, granting preemptory right to the plaintiff to purchase the house no.734 (seven hundred thirty four) before alienation of the same to defendant no.2 (two).

(b) that a judgment and decree for permanent injunction be passed and defendant no.1 (one) be restrained from giving possession of the house no.734 (seven hundred thirty four), Sarafa Ward, Kamania Gate, Jabalpur to defendants no.2 (two) and 3 (three) on the basis of the sale-deed executed by defendant no.1 (one) on 11.3.2002 (eleventh of March two thousand (two) in favour of defendants no.2 (two) and 3 (three) and till defendant no.1 executed a fresh sale-deed in favour of plaintiff along with defendants no.2 (two) and 3 (three) or till the Court decides the pre-emptory rights of plaintiff and till the partition takes place by meets and bounds between the parties for the reasons as stated in the body of the plaint.

(c) Any other relief, which this Hon''ble Court be deemed fit in the facts and circumstances of the case be awarded.

4A. Respondent filed an application under Order 39 rules 1 and 2 of C.P.C. praying following reliefs :

It is, therefore, prayed that a temporary injunction may kindly be issued and the defendant no.1 (one) be restrained from handing over the possession of the house to defendants no.2 (two) and 3 (three) and the defendants no.2 (two) and 3 (three) be further restrained not, to alienate the property to any third person till the decision of the suit on merits.

Present suit was filed on 21.3.2002. On 28.3.2002, defendants/ appellants appeared in the case and informed the Court that as per sale-deed, defendant no.1 has handed over the possession of the suit property to defendant no.2 and 3 at the time of the registration of the sale-deed. On this, the plaintiff has not pressed his application under Order 39 rules 1 and 2 C.P.C. Consequently, the application was rejected. Thereafter on 11.7.2002, respondent again moved an application under Order 39 rules 1 and 2 C.P.C. seeking following reliefs :

It is, therefore, prayed that a temporary injunction may kindly be granted restraining the defendant no.1 from transferring the possession of the property to the defendants and the rest of the defendants be restrained from taking possession or alienating the property to a third person and making any construction of the property till the decision of the suit on merits.

This application was contested by the appellants by filing reply and various pleas were taken. The learned trial Court by the Impugned order allowed the application and temporary injunction was issued against appellant no.1 directing not to handover the possession to appellants 2 and 3 till further orders. Aggrieved by which, appellants have filed the present appeal. The appellants have also filed an application on 15.8.2002 by which appellants have filed following documents:

Affidavit of Smt. Mayabai

Certified copy of plaint.

Panchnama dated 4.8.2002 in Crime no.297/02.

Copy of Judgment dated 9.5.1981 passed in Civil Suit N0.148-A/ 79 (S.S. Harishchandra Jain and others vs. Smt. Mayadevi and another) by Civil Judge Class-2, Jabalpur.

Thereafter again on 16.9.2002, appellants filed another application under Order 41 rule 27 C.P.C. by which appellants have filed copy of registered partition deed dated 22/25.2.1948.

The contention of the learned counsel for the appellants is : (a) that the 2nd application based on same facts and for the same relief was not maintainable and barred by res judicata as held by the Apex Court in case of Arjun Singh Vs. Mohindra Kumar (1964 SC 993), Gopal Narayan Vs. State of M.P. (1979 MPLJ 284), Madan Lal Khuteta Vs. Badri Narayan, ) and Narain Singh Vs. M/s Ramgopal Madan Lai ( AIR 1981 Del 88) and contended that the second application was liable to be dismissed without considering the merits of the case, (b) the Court below has not considered order dated 28.3.2002 on previous application filed by respondent was dismissed on the ground that the possession of the property was delivered by appellant no.1 to appellants 2 and 3. In the circumstances, no injunction could be issued by which appellant no.1 has been restrained to handover the possession of the suit property to appellants 2 and 3, while the possession was already delivered at the time of the execution of the sale-deed, which fact was well within the knowledge of respondent. He has failed in previous Civil Suit No.93-A/02. The suit as filed by the respondent was not maintainable. The respondent has not filed.suit for partition but has filed suit seeking the relief of mandatory injunction to execute the sale-deed. In view of Sections 38 and 41 of the Specific Relief Act, such relief cannot be granted. Respondent ought to have filed suit for specific performance of the agreement by payment of court fee, but in the present case, respondent has not prayed specific performance of the agreement nor paid proper Court-fee and in this regard, the trial Court has already passed an order on 23.4.02 directing the plaintiff to value the suit properly and to pay the Court fee (c). The application filed by the appellants under Order 41 rule 27 C.P.C. with certain documents are necessary documents to decide the controversy between the parties. The suit which was filed by the plaintiff on the allegation that there is no partition between the parties, while in fact the partition was effected long back and this issue was already decided between the parties in Civil Suit No.148-A/79 in which the Court while deciding issues 1 and 2 has recorded a finding that there is partition between the parties. In that suit, Harischandra Jain, father of respondent, and Maya Devi were parties. Apart from this, possession of the property was delivered by appellant no.1 in favour of appellants 2 and 3 which fact was brought to the knowledge on 28.3.2002. On this respondent has got dismissed his application as not pressed. For the same relief, this subsequently application was filed, but on the date of the suit, appellant no.1 had already delivered possession of suit property to appellants 2 and 3. In the circumstances, no injunction could be issued restraining appellant no.1 to deliver the possession of the suit property in favour of appellants 2 and 3. The application is misconceived and is liable to be dismissed.

The learned counsel for respondent contends that as there was no decision on previous application on merits, hence the principle of res judicata will not apply and in this regard, he has placed reliance on the judgment of the Apex Court in M/s. International Woolen Mills Vs. M/s. Standard Wool (U.K.) Ltd., ). The suit is maintainable u/s 38 of Specific Relief Act. Respondent is not claiming any right In the property, but claiming right available to him under the law. The document filed by the appellants are not necessary at this stage and if those document are admitted, then, respondent is entitled to rebut those documents, and accordingly, matter deserves to be remitted back. The present application was filed on different ground. In previous application while the injunction was sought on the ground that appellant no.1 has no right to execute the sale deed because of the share contained in Tamllknama. On this ground, the aforesaid application was filed, while the present application was filed on the ground that the purchaser did not get any right In an undivided share transferred by the seller and in the present case also, undivided share has been transferred by defendant no.1. The purchaser did not get any right, title or interest by the sale deed unless he brings a suit for partition of the property, which they have not filed so far. On this ground, the injunction was sought.

In reply of the aforesaid contention, the learned counsel for the respondent submits that the relief sought in both applications was same. Appellants 2 and 3 and respondent are real brothers. They stand on the same footing and when the possession of the property was already delivered to appellants 2 and 3, then there is no question for issuing a temporary injunction. The relief which has been sought in the present application has already rendered infructuous because of the happening of the event even prior to filing of the suit and this fact was well in the knowledge of the respondent when the order dated 8.3.2002 was passed by which the respondent has got his application dismissed. The property is already partitioned, though in the sale-deed, it is written ''undivided property'' but from the perusal of the documents registered partition deed dated 22/25.2.1948, judgment and decree passed in Civil Suit No. 148-A/79, it is apparent that there is partition between the parties and partition was effected and accepted by the parties.

Considering the rival contentions raised by the parties, it appears that previously respondent filed a suit registered as C.S.No.93-A/02 on 11.3.2002. From the perusal of the order-sheet of that suit, which is available on record, it appears that the notices were issued in the suit on 11.3.2002. On 14.3.2002, a temporary injunction was issued for maintaining status quo, but on the same day, the counsel appearing for the defendants-appellants has stated that he is not aware with the fact whether the property has been alienated or not. On 16.3.2002, the temporary injunction was rejected on the ground that on 11.3.2002 itself the sale deed was executed by appellants no.1 Smt. Mayabai in favour or appellants 2 and 3. Consequently, the application was rejected in Civil Suit No.93-A/02. On 6.4.2002 on the application filed by the appellants under Order 7 rule 11 C.P.C. the aforesaid suit was also dismissed.

During the pendency of the previous suit, present suit was filed on 20.3.2002 along with application and on 28.3.2002, this fact was brought to the notice of the Court that the appellant no. 1 has already executed the sale-deed and delivered the possession of the property to appellants 2 and 3 on the date of the registration of the sale-deed. In view of the aforesaid statement, respondent did not press application under Order 39 rules 1 and 2 C.P.C. Consequently, the application was rejected. However, in subsequent application in para 4 though respondent has stated that the undivided share was transferred by the seller and purchasers will not get any right and unless purchasers bring a suit for partition of the property which they have not filed till today. On this ground, it was submitted that the purchasers did not have right of possession in the property and the seller also does not have the right to transfer possession of the property without partition.

Though the appellants 2 and 3 and respondent are real brothers, but the respondents has not made any averment in this regard. The similar relief as stated hereinabove was prayed for issuance of injunction against appellant no. 1 from transferring the possession of the property to appellants nos. 2 and 3 and for handing over possession or alienaling the property and not to make any construction on the property. The contention of the respondent was misconceived. The aforesaid fact that appellant no. 1 has already transferred the properly with possession to appellants 2 and 3 was well within the knowledge of respondent which is apparent from the perusal of order sheet dated 28.3.2002. The previous suit filed for restraining appellant no. 1 not to transfer the suit property was also dismissed. The application seeking same relief was already dismissed. It is settled law that order on interlocutory application at one stage is binding at subsequent stage. The previous application was got dismissed by the respondent without any reservation or permission. The same relief was prayed in the subsequent application. On same fact, though in subsequent application, plea of transfer of undivided share in the property was taken, but once it is brought to the notice of the Court that the property has been transferred by appellant no. 1 with possession to appellants 2 and 3, then for seeking the same relief, subsequent application was not maintainable. Their possession cannot be reverted back. The respondent was well aware with the fact that the property has already been alienated by appellant no. 1 in favour of appellants 2 and 3 and the possession was delivered to appellants 2 and 3, then there is no question of issuance of any temporary injunction against appellant no. 1 and appellants 2 and 3 cannot be restrained from taking possession of the same. In view of the aforesaid, the 2nd application was misconceived and respondent was estopped from filing the subsequent application on similar facts Though the learned counsel for respondent has relied on judgment of the Apex Court in M/s. International Woolen Mills Vs. M/s. Standard Wool (U.K.) Ltd., , but in that case, the question of dismissal of previous application was not before the Apex Court, but in that case during the pendency of first application, another application was filed and both the applications were heard together and decided by the same order; In both the applications filed in that case, different grounds were taken. The Apex Court considering the objection raised by the other side held that Explanation IV to Section 11 of the CPC would have come into play only if some decision had been finally given before the second application was filed. The Apex Court in the judgment has observed that the appellants could have, instead of filing a second application, amended their first application and taken those pleas in that application itself. Had they amended the first application, there would have been no bar of res judicata or constructive res judicata. It was also observed that both the applications were heard simultaneously and decided by the common order, but in the present case, application filed on similar grounds was got dismissed by the respondent. If the respondent was of the opinion that he is entitled for injunction on the ground that the property was undivided and cannot be alienated or transferred by appellant no. 1 in favour of appellants 2 and 3, the recourse available to the respondent was either to withdraw the application with liberty to file a fresh application or to amend the previous application amending the ground seeking relief against the appellant no. 1, but respondent has not taken such a recourse and got dismissed his first application as not pressed. In the circumstances, respondent was estopped from filing 2nd application. The Court below erred in allowing the 2nd application without considering the legal position. In view of the aforesaid, the 2nd application filed by the respondent was not maintainable in law and was liable to be dismissed on this ground alone. This appeal is allowed and the order passed by the Court below is set aside.

The other contention raised by the learned counsel for the appellants are not considered as the second application filed by the respondent has been found to be not maintainable on the aforesaid ground.

In view of the aforesaid, this appeal is allowed. Order passed by the Court below is set aside. Costs of this appeal will be borne by the respondent. Counsel''s fee Rs. 2,000/-.