2011 Supreme(Raj) 2470
RAJASTHAN HIGH COURT
Dinesh Maheshwari, J.
Megh Raj and another - Appellant
Versus
Mst Bali Bai and others - Respondent
S.B. Writ Petition No. 5457 of 2010.
Decided On : 2-09-2011
For the Petitioners:R.K. Soni for I.R. Choudhary, Advocates.
For the Respondent-Caveator:B.L. Choudhary for Sandeep Saruparia, Advocates.
A temporary injunction may be granted during the pendency of a revenue suit for declaration, partition, and other reliefs, where the plaintiffs have made out a prima facie case that the land in question is ancestral property of the joint family, and the defendants have failed to show prima facie that a part thereof is self-acquired property.
Headnote:
{'KEYWORD': 'TEMPORARY INJUNCTION', 'SUBJECT': 'REVENUE SUIT', 'ACT SECTION LIST': 'SECTIONS 88, 53, 188 AND 209 OF THE RAJASTHAN TENANCY ACT, 1955', 'SUMMARY': 'The court upheld the grant of temporary injunction during the pendency of a revenue suit for declaration, partition, and other reliefs. The plaintiffs had made out a prima facie case that the land in question was ancestral property of the joint family, and the defendants failed to show prima facie that a part thereof was self-acquired property. The court found no jurisdictional error in the orders impugned and held that they neither suffered from any jurisdictional error nor led to failure of justice.'}
Fact of the Case:
The plaintiffs filed a revenue suit under Sections 88, 53, 188, and 209 of the Rajasthan Tenancy Act, 1955, claiming their rights in the land in question situated at village Karunda admeasuring 56 bighas and 10 biswas. They also moved an application under Section 212 of the Act seeking restraint orders against the defendants from alienating the land in question and from interfering with their possession. The SDO initially issued a temporary injunction but later vacated it in relation to the self-acquired property. The plaintiffs appealed to the RAA, which set aside the SDO's order and granted a blanket injunction against the defendants. The defendants challenged this order before the Board of Revenue, which dismissed their revision petition.
Finding of the Court:
The court found that the plaintiffs had made out a prima facie case that the land in question was ancestral property of the joint family, and the defendants failed to show prima facie that a part thereof was self-acquired property. The court also found that the SDO's order dated 19.01.2009 suffered from serious illegality and impropriety as the Presiding Officer who passed the order had not even heard the arguments.
Issues: Whether the RAA and the Board erred in granting and maintaining the blanket injunction against the petitioners.
Ratio Decidendi: The court held that the orders impugned neither suffered from any jurisdictional error nor led to failure of justice. The court found that the plaintiffs had made out a prima facie case that the land in question was ancestral property of the joint family, and the defendants failed to show prima facie that a part thereof was self-acquired property. The court also found that the SDO's order dated 19.01.2009 suffered from serious illegality and impropriety as the Presiding Officer who passed the order had not even heard the arguments.
Final Decision: The court dismissed the writ petition.
JUDGMENT
1. - This writ petition, relating to the matter of grant of temporary injunction during the pendency of a revenue suit for declaration, partition and other reliefs, has been filed by the defendants in the suit seeking to question the order dated 05.05.2010 as passed by the Board of Revenue for Rajasthan, Ajmer ('the Board') in Revision Petition No.TA/3020/2009/Chittorgarh whereby the Board declined to interfere with the order dated 25.03.2009 as passed by the Revenue Appellate Authority, Chittorgarh ('the RAA') after finding no case of jurisdictional error.
2. In the aforesaid order dated 25.03.2009, the RAA considered and decided the appeal filed by the plaintiffs against the order dated 19.01.2009 as passed by the Sub-Divisional Officer, Nimbaheda ('the SDO') in Misc. Case No.227/2008 and, while modifying the order so passed, granted temporary injunction as prayed; and restrained the defendants,petitioners from alienating the land in question admeasuring 56 bigahs and 10 biswas and further directed that status quo shall be maintained during the pendency of the suit.In a brief reference to the background aspects, suffice is to notice that the plaintiffs-respondents Nos. 1 to 4 have filed a revenue suit under Sections 88, 53, 188 and 209 of the Rajasthan Tenancy Act, 1955 ('the Act of 1955') against the present petitioners claiming their rights in the land in question situated at village Karunda admeasuring 56 bighas and 10 biswas while alleging the land in question to be the ancestral property of the joint Hindu family and themselves having the rights in the same as successors of the cotenants. The plaintiffs also moved an application under Section 212 of the Act of 1955 seeking restraint orders against the defendants petitioners from alienating the land in question and from interfering with their possession.
3. It appears from the material placed on record that in the first place, the learned SDO, by order dated 16.10.2008, issued the temporary injunction and directed that status quo in relation to the record shall be maintained. Thereafter, the matter was heard on 30.12.2008 and was posted for orders on 19.01.2009. On 19.01.2009, the questioned order came to be passed in the following terms:
"i=koyh is'k gqbZA odhy oknh mifLFkrA odhy oknh us izkFkZuk i= izLrqr fd;k ftlesa LFkxu vkns'k vkxkeh is'kh rd c<+kus dk fuosnu fd;kA iwoZ lquokbZ fnukad 30-12-2008 ds vuqlkj LovftZr vkjkft;kr ij ls LFkxu fujLr fd;k tkrk gSA ekS:lh vkjkft;kr ij rkfu.kZ; LFkxu dUQeZ fd;k tkrk gSA i=koyh okLrs fnukad 16-3-2009 dks ewy okn ds lkFk is'k gksA"
4. Aggrieved by the order aforesaid, particularly of denial of the prayer for temporary injunction in regard to the so called self acquired property, the plaintiffs preferred the appeal that was considered and decided by the RAA by the order dated 25.03.2009. Apart from the merits of the case, a submission made before the RAA was taken note of that in the Trial Court the arguments were heard by the Presiding Officer on 30.12.2008 who posted the matter for orders on 19.01.2009; but the said Presiding Officer was3 transferred and the succeeding Presiding Officer passed the order on 19.01.2009 without hearing the parties. Even without much comments on the aforesaid aspect, the learned RAA found that the rights of the parties were to be determined in the original suit and there was a prima facie case in favour of the plaintiffs. The RAA also took note of the fact that the defendants were seeking to somehow alienate the land in question. In the totality of the circumstances, the learned RAA found that the balance of convenience was in favour of the plaintiffs and also observed that in case of transfer of the land in question, the plaintiffs were likely to suffer irreparable injury; while on the other hand, the land was mortgaged with the Bank against the loan and hence, its transfer was even otherwise not justified. The learned RAA thus, proceeded to set aside the order passed by the SDO and issued the
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