From a bare reading of the said provision. it is clear that it is merely with respect to the validity or otherwise of a deed of transfer made during the pendency of a suit, but it does not speak about the jurisdiction of the courts to allow or refuse injunction. It is only to protect the properties and to keep it within the domain of the Court where the matter is pending with respect thereto. Hence, the said provision gives protection to the applicants by rule of lis pendens. According to the aforesaid provision of law, the effect of doctrine of lis pendens is not to stop or annul all voluntary transfers effected by the parties to the suit, but is only to render it subservient to the rights of parties thereto under the decree or order, which may be passed Subsequently in that suit. By the said principle, the decree passed in the suit becomes binding even upon a third person, who is although not a party to the suit, but is a transferee from any of the parties to the suit during the pendency thereof.
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Patna High Court
Brij Mohan Singh vs Smt. Krishna Shahi And Ors. on 4 January, 2007
Equivalent citations: 2007 (1) BLJR 635
1. Heard learned counsel for the appellant and learned counsel for the respondents at length.
2. This Misc. Appeal is directed against order dated 07.09.2001, by which the learned Subordinate Judge, Patnacity, rejected the petition of the plaintiff-appellant filed in Title Suit No. 15 of 1999 for grant of injunction restraining the defendant-respondents from alienating the suit properties.
3. The aforesaid title suit was filed by the appellant and respondents fourth set for partition of the suit properties, which they claimed to be the ancestral properties, in which, according to them, they had 1/4th share in Schedule-II properties and half share in Schedule-III properties. The genealogy is admitted as the common ancestor Bhirgu Prasad Narayan Shahi had two sons, namely, Ram Prasad Narayan Shahi and Ram Rekha Prasad Narayan Shahi, out of which Ram Prasad Narayan Shahi had only a daughter Rama Devi, who was the mother of plaintiffs No. 1 to 4, mother-in-law of plaintiff No. 5 and grandmother of plaintiffs No. 6 and 7, whereas, Ram Rekha Prasad Narayan Shahi left behind a son Bireshwar Prasad Narayan Shahi (husband of defendant No. 1, father of defendant No. 2 and grandfather of defendant No. 3) and a daughter Gayetri Devi, defendant No. 4 (mother of defendants No. 5 to 9). It is also stated that Ram Prasad Narayan Shahi died in the year 1964 and his daughter Rama Devi died in the year 1978, whereas, Ram Rekha Prasad Narayan Shahi died in the year 1952 and his son Bireshwar Prasad Narayan Shahi died in the year 1976.
4. There are two sets of properties involved in the instant suit, detailed in Schedule-II and Schedule-III of the plaint, out of which Schedule-II properties are house with land situated in Gulzarbagh within the town of Patna, whereas, Schedule-III properties are agricultural lands situated in village Gabhirar within the district of Siwan.
5. Admittedly, Schedule-II properties were purchased by various deeds in the names of Ram Rekha Prasad Narayan Shahi and one Jalgovind Prasad Singh with respect to half share each, whereas, Schedule-III properties were ancestral properties of Shirgu Prasad Narayan Shahi. The claim of the plaintiffs is that Ram Rekha Prasad Narayan Shahi purchased half share in Schedule-II properties on behalf of joint family from the nucleus of joint family fund in the year 1947 and hence both the brothers, namely, Ram Prasad Narayan Shahi and Ram Rekha Prasad Narayan Shahi each had half Interest in the moiety share purchased by the family in the name of Ram Rekha Prasad Narayan Shahi by the said deeds, whereas, the other moiety share was purchased by hargovind Prasad Singh and hence Ram Prasad Narayan shahi and his successors, namely, the plaintiffs had 1/4th share in Schedule-II properties, whereas, Ram Rekha Prasad Narayan Shahi and his successors, namely, the defendants also had 1/4th share therein with respect to Schedule-III properties, the plaintiffs had claimed that they were admittedly ancestral properties and hence Ram Prasad Narayan Shahi and his successors, namely, the plaintiffs had clearly half share therein, which was claimed by the plaintiffs, whereas, Ram Rekha Prasad Narayan Shahi and his successors, namely, the defendants had the remaining half share in that property. In the said circumstances, the plaintiffs filed an injunction petition in the said suit for restraining the defendants from alienating the suit properties as defendants were regularly frittering away Page 0638 the suit properties during the pendency of the suit. During the pendency of this appeal also they are continuing to do so as claimed by the appellant.
6. On the other hand, learned counsel for the defendant-respondents had claimed that Schedule-II properties were the self acquired properties of Ram Rekha Prasad Narayan Shahi, who had purchased the same in his own name by a registered document out of his own income and hence his brother or the plaintiffs had no share or interest therein. In that regard, he submitted that similarly Ram Prasad Narayan Shahi, predecessor of the plaintiffs, had purchased huge properties of Boring Road in his own name out of his own income, which he dealt according to his own free-will and his brother Ram Rekha Prasad Narayan Shahi never objected to the same. With respect to Schedule-III properties, the claim of the defendant-respondents in that after the death of Ram Prasad Narayan Shahi, his daughter, her husband and the plaintiffs left those lands and had no interest therein as husband of Rama Devi, namely, Chandeshwar Prasad singh alias chandu Babu (father of plaintiffs No. 1 to 4) of chambey Estate himself had hundreds of acres of and, for which land ceiling cases were going and hence they never raised any claim whatsoever with respect to Schedule-III lands during their entire the time, whereafter, on the principal of ouster, the plaintiffs had no right left in those lands. It is further stated that said Chandeshwar Prasad Singh filed details of land in the celling proceedings, which belonged to him, his wife and their children, out the lands in suit were never included as their land in their claims either before the ceiling authority or before other authorities. He also stated that the said land remained throughout in exclusive possession of Ram Rekha Prasad Narayan shai and his children and were also recorded in their exclusive names, regarding which no objection was ever raised by the plaintiffs or their predecessors. In the said circumstances, learned counsel for the defendant-respondents submitted that the plaintiffs had no right, title or interest in the said properties and their entire claim is frivolous and baseless.
7. Apart from the aforesaid arguments, learned counsel for both the parties had taken two extreme and opposite views. As per the plaintiff-appellant, no suit properties should be allowed to be transferred or otherwise dealt with by any party to the suit during the pendency of that suit, whereas, according to the defendant-respondents no order of injunction could be granted during the pendency of the suit as the matter has to be finally decided in the title suit. Learned counsel for the plaintiff-appellant relied upon the provision of Section 52 of the Transfer of Property Act (hereinafter referred to as 'the Act' for the sake of brevity) and several decisions of this Court as well as of the Hon'ble Apex Court in case of Gauri Dutt Maharaj v. Sukur Mohammad and Ors. reported in A.I.R. 1948 Privy Council 147, in case of Dharam Nath Ojha v. Raghunath Ojha reported in 2001(2) P.L.J.R. 268 and in case of Geeta Mishra v. Mostt. Adhikari Kunwar and Ors. reported in 1993(1) B.L.J.R. 358 and also in case of T. Lakshmipathi v. P. Nithyananda Reddy reported in 2003(2) B.L.J.R. (SC) 129 as well as in case of Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass in support of his aforesaid contention,
whereas, learnea counsel for the defendant-respondents relied upon several decisions of this Court as well as of the Hon'ble Apex Court in case of Dharam Nath Ojha (supra) , in case of T. Lakshmipathi (supra), in case of D.S. LaKshmaiah v. I. Balasubramanyam and in case of Maharwal Khewaji Trust (Read.), Fridkot (supra).
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8. Section 52 of the Act reads as follows:
52. Transfer of prfoperty pending suit relating thereto.-
During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government... of any suit or proceeding which is not collusive and in which any right of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
9. From a bare reading of the said provision. it is clear that it is merely with respect to the validity or otherwise of a deed of transfer made during the pendency of a suit, but it does not speak about the jurisdiction of the courts to allow or refuse injunction. It is only to protect the properties and to keep it within the domain of the Court where the matter is pending with respect thereto. Hence, the said provision gives protection to the applicants by rule of lis pendens. According to the aforesaid provision of law, the effect of doctrine of lis pendens is not to stop or annul all voluntary transfers effected by the parties to the suit, but is only to render it subservient to the rights of parties thereto under the decree or order, which may be passed Subsequently in that suit. By the said principle, the decree passed in the suit becomes binding even upon a third person, who is although not a party to the suit, but is a transferee from any of the parties to the suit during the pendency thereof. The latter part of the said section specifically provides that the transfer will remain valid subject, however, to the result of the suit. In the said circumstances, either Section 52 of the Act or the aforementioned case-laws relied upon by the plaintiff-appellant do not provide that in every circumstances a party to the suit has to be restrained from transferring any property involved in the suit. In this regard reference may be made to the decision of the Hon'ble Apex Court in the case of Nagubai v. B. Shama Rao and the
decision of this Court in case of Govind Mahto and Ors. v. Raj Kishore Mandal and Ors. reported in 1988 P.L.J.R. 190.
10. On the other hand, the view of learned counsel for the defendant-respondents that in any case whatsoever, no interlocutory order of injunction can be passed in a suit as it has to be decided finally at the time of deciding the suit, is clearly preposterous and devoid of any substance and also against the specific provisions of law including Order 39 of the Code of Civil Procedure.
11. In my view, both the aforesaid arguments of the parties are not based on correct appraisal of the provision of law and the case-laws. Basically, a Oivil Court is a court of equity and specially injunction is an equitable relief and hence while passing any such order, the prime consideration for such a court has to be equity, except in cases where there is any specific law or any specific bar against passing of such an order.
12. From the discussions made above, it is quite apparent that there is neither any compulsion provided in any law upon the court to pass an order of injunction in every suit whatsoever nor is there any law providing any bar upon any court restraining it from refusing any prayer for injunction in any matter whatsover. Hence, it is for the Court to decide such question with respect to injunction on the basis of principles of Page 0640 equity and justice. Considering these two points of equity and justice, the law has been settled that there should be three ingredients for passing or refusing any order of injunction, which are prima-facie case, balance of convenience and irreparable loss and if any of them is absent, no such order allowing prayer for injunction can be passed as has been held in a catena of decisions by the Hon'ble Apex Court as well as by the various High Courts, including this Court.
13. Now, coming to the instant case, the three ingredients as mentioned above have to be seen. So far as Schedule-II properties are concerned, they have been acquired in the specific name of the predecessor in interest of the defendants and no material has come forward to show that the same were purchased from the nucleus of the joint family. In law there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property as has been held by the Hon'ble Apex Court in case of D.S. Lakshmaiah v. L. Balasubramanyam. (supra). In the instant case, the plaintiff-appellant has not yet proved the same and hence at this stage it cannot be said that the plaintiff-appellant had any prima-facie case with respect to the said property. Furthermore, from the arguments of the parties and the materials produced, it appears that the said properties have throughout remained in possession of the defendant-respondents and their predecessors, who have been dealing with them since the time of their purchase and hence neither the balance of convenience is in favour of the plaintiff-appellant nor he will suffer any irreparable loss if the order of injunction is not passed.
14. So far as Schedule-III properties are concerned, it is not in dispute that the same were ancestral properties of forefather of the parties, namely, Bhirgu Prasad Narayan Shahi, but it is the specific case of the defendant-respondents that after the death of Ram Prasad Narayan Shahi, son of Bhirgu Prasad Narayan Shahi in 1964, his heirs and successors left all interests in those properties as his daughter Rama Devi was married to a very big landlord of Shambey Estate Babu Chandeshwar Prasad Singh alias Chandu Babu, who had hundreds of acres of land, for which land ceiling cases were going and hence they disclaimed the aforesaid Schedule-III lands and did not ever include those lands in the lands of the family of the plaintiffs and their predecessors in, any case filed before any authority, hence the defendant-respondents made out a clear case of ouster. From the pleadings of the parties and the materials on record, it appears that the plaintiff-appellant or his predecessor has not been in possession of the said lands since the path of Ram Prasad Narayan Shahi and the said lands remained exclusively recorded in the names of the predecessors of the defendants, who were in exclusive possession and had been dealing with the same as absolute owners, to which no objection is shown to have ever been raised before any authority by the plaintiffs or their predecessors. In the said circumstances, neither the balance of convenience is in favour of the plaintiff-appellant nor he is going to suffer any irreparable loss.
15. In the aforesaid facts and circumstances, I do not find any Illegality or irregularity in the Impugned order of the learned court below as the plaintiff-appellant is not entitled for grant of any Injunction in his favour and, accordingly, this Misc. Appeal is dismissed with an observation that any sale or transfer of the suit properties by any of the parties during the pendency of the suit shall be subject to the decree or order finally passed In the title suit concerned.
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