Suresh Kumar and Others vs Arun Kumar

Deepak Gupta, J.

1 This petition is directed against the order dated 11.1.2011 passed by the learned District Judge, Sirmaur at Nahan whereby he confirmed the order dated 10.8.2010 passed by the learned Civil Judge (Sr. Division), Sirmaur at Nahan rejecting the application filed by the Petitioners (hereinafter referred as the Plaintiffs) for grant of stay.

2 The undisputed facts are that the Plaintiffs and Respondent-Defendant No. 1 are real brothers. By means of this suit, the Plaintiffs have mainly laid challenge to the 2 gift deed executed by their father in favour of Defendant in respect of land comprised in khasra Nos. 3500,3501, 3502, 3504 and 3505 measuring 543-74 Sq. meters situated in Muhal Amarpur, Nahan Town, District Sirmaur, HP. In addition to the aforesaid relief, the Plaintiffs have also claimed that they along with Defendant are the joint owners in possession of another two pieces of land measuring 763-3 Sq. meters and 341-99 Sq. meters respectively. The Plaintiffs have also admitted that their father had made a gift deed in favour of Defendant No. 2 which is not the subject matter of challenge.

From the aforesaid facts it is clear that the suit property can be described in two parts; one the gifted property, i.e. khasra Nos. 3500,3501, 3502, 3504 and 3505 measuring 543-74 Sq. meters and the balance suit property. As far as the gifted property is concerned, both the Courts below have come to the conclusion that prima facie a valid gift deed had been executed in favour of the Defendant by his father and till the issue is decided in favour of the Plaintiffs they cannot be granted any interim relief.

I am totally in agreement with the learned Trial Court as well as with the learned Lower Appellate Court in this 3 regard because even the Plaintiffs did not deny the execution of the gift deed. According to them, the gift deed was got executed only for the purpose of getting a loan through the Defendant who at the relevant time was serving in the Indian Army. This question is a disputed question and at this stage the validity of the gift deed cannot be set at naught.

However, as far as the balance suit property is concerned, the learned Lower Appellate Court has come to the conclusion that this property is jointly owned by the parties. The learned Trial Court had rejected the application only on the ground that the remedy of the Plaintiffs is by way of filing an application for partition before the Revenue Court. Even if the land is agricultural and a suit for partition may lie before the Revenue Court, the Civil Court still has jurisdiction to injunct one of the co-owners from raising construction on the suit property. This aspect has been lost sight by both the Courts below. Once the property is joint, none of the parties can raise any construction thereon till the same is partitioned in accordance with law.

In view of the above discussion, the petition is partly allowed and the order of the learned Courts below in respect of gift deed is affirmed. However, as far as the balance suit property other than the gifted property is concerned, the parties are directed to maintain status quo qua the said suit land and are restrained from raising any construction thereupon. Petition is disposed of accordingly. No costs.