Dharmdev Singh Rajput vs Kavindra Singh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(MP) 763

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A.K. Shrivastava and Brij Kishore Dube, JJ.
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Dharmdev Singh Rajput
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Kavindra Singh and others
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Writ Petition No. 2074 of 2009 (1) (Gwalior); against order of Third Additional District Judge, Vidisha, passed in Misc. Civil Appeal No. 29 of 2008;
Decided on: 12.10.2010

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Advocates Appeared:
D.D. Bansal for petitioner;
K.S. Tomar with Arshad Ali for respondents No.1 and 2;
P.N. Gupta, Govt. Advocate for State.

Headnote:¼1½ flfoy izfdz;k lafgrk] 1908 & vk- 39] fu- 1 rFkk 2 & vLFkk;h O;kns‘k & dc iznku fd;k tk ldrk gS & jktLo vfHkys[k esa dqN d`f"k Hkwfe la;qDr :i ls rFkk dqN O;fDrxr :i ls vfHkfyf[kr & Hkwfe dk vU;ladzke.k djus ds fo"k; esa vk‘kadk & la;qDr Hkwfe ds fo"k; esa vLFkk;h O;kns‘k ds fy, vkosnu eatwj fd;k x;kA ¼2004½ 8 ,l lh lh 488 vuqlfjrA 1997 jk fu 238 ¼mPp U;k-½ voyafcrA 1999 ¼2½ e-iz- ohDyh uksV~l 11 fufnZ"VA ¼iSjk 13] 14 rFkk 16½

       ¼2½ fganw fof/k & eqYyk dh fgUnw fof/k & vuq- 231 ¼2½ & la;qDr fganw dqVqEc & jktLo vfHkys[k esa dqN Hkwfe la;qDr rFkk dqN la;qDr dqVqac ds ,d lnL; ds uke ,dkdh :i ls vfHkfyf[kr & dh mi/kkj.kk & ;g lkfcr fd, fcuk fd Hkwfe la;qDr dqVqac dh laifRr dh vk; ls dz; dh Fkh & ,slh Hkwfe la;qDr dqVqac dh laifRr ugha ekuh tk ldrh & izek.k Hkkj ml i{kdkj ij gS tks ,slk izk[;ku dj jgk gSA 1996 ts ,y ts 477 izHksfnrA ¼iSjk 15½

       ¼3½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 117 & la;qDr fganw dqVqac & jktLo vfHkys[k esa dqN Hkwfe la;qDr :i ls rFkk dqN ,d lg&HkwfeLokeh ds uke vfHkfyf[kr & dh mi/kkj.kk & ;g lkfcr fd, fcuk fd ,slh Hkwfe la;qDr dqVqac dh laifRr dh vk; ls dz; dh Fkh & ,slh Hkwfe dks la;qDr dqVqac dh laifRr ugha ekuk tk ldrk & izek.k Hkkj ml O;fDr ij gS tks ,slk izk[;ku dj jgk gSA 1996 ts ,y ts 477 izHksfnrA ¼iSjk 15½
       (1) Civil P.C., 1908 -- O. 39. Rr. 1 and 2 -- temporary injunction -- when may be granted -- some agricultural land jointly and some individually recorded in revenue records -- apprehension in respect of alienation of land -- application for temporary injunction in respect of joint land allowed. (2004) 8 SCC 488 followed. 1997 RN 238 (HC) relied on. 1999 (II) MPWN 11 referred to. [Paras 13, 14 and 16
       (2) Hindu Law -- Mulla‘s Hindu Law -- Art. 231 (2) -- joint Hindu family -- some land joint and some exclusively in name of one member of joint family recorded in revenue records -- presumption of -- without proving that land was purchased from income of joint family property -- such land cannot be treated joint family property -- burden of proof is on the party who asserting it. 1996 JLJ 477 distinguished. [Para 15
       (3) Land Revenue Code, 1959 (M.P.) -- S. 117 -- joint Hindu family -- some land jointly and some in name of one Co-Bhumiswami recorded in revenue records -- presumption of -- without proving that such land was purchased from income of joint family property -- such land cannot be treated joint family property -- burden of proof is on the person who asserting it. 1996 JLJ 477 distinguished. [Para 15

ORDER

A.K. Shrivastava, J. -- 1. Feeling aggrieved by the order dated 16.2.2009 passed by learned Third Additional District Judge, Vidisha, in Misc. Civil Appeal No. 29/2008, whereby the order dated 21.8.2008 passed by learned Second Civil Judge, Class II, Vidisha in civil suit No. 69-A/2008 allowing the application of temporary injunction of plaintiff has been reversed and the appeal of defendants 1 and 2 has been allowed by dismissing the application for issuance of temporary injunction of plaintiff, this petition under Article 227 of the Constitution of India has been filed by the plaintiff/petitioner.

2. No exhaustive statement of facts are required to be narrated for the purpose of disposal of this petition. Suffice it to say that a suit for declaration in respect of certain agricultural lands, which are the subject matter of the suit, has been filed by the plaintiff/petitioner praying that the suit land is of Joint Hindu Family and the plaintiff is having 1/2 share in it. A relief of injunction has also been sought that a decree of injunction be issued against defendants 1 and 2 restraining them to alienate the suit property in any manner.

3. An application for issuance of temporary injunction under Order 39 Rule 1 and 2 of CPC has also been filed by the plaintiff praying in it that till the decision of the suit, defendants 1 and 2 be restrained from alienating the suit property.

4. The defendants refuted the averments made in the application for issuance of temporary injunction by filing a reply praying therein that plaintiff is not entitled for the relief which he has prayed for, and hence, it has been prayed that application for issuance of temporary injunction be dismissed.

5. The learned Trial Court on the basis of the pleadings, affidavits and other material placed on record, allowed the application of temporary injunction of plaintiff and restrained defendants 1 and 2 from alienating the suit property vide order dated 21.8.2008 (annexure P/2).

6. The defendants, feeling aggrieved by the said order of learned trial Court, filed Misc. Civil Appeal before learned first appellate Court which has been allowed by the impugned order and the application for issuance of temporary injunction of the plaintiff has been dismissed.

7. In this manner, this petition under Article 227 of the Constitution of India has been filed by the plaintiff/petitioner.

8. Shri Bansal, learned counsel for the plaintiff/petitioner, submits that plaintiff and defendant No.1 are the real brothers and defendant No.2 is the son of defendant No.1. Learned counsel further submits that there is a specific pleading of the plaintiff that parties belong to Joint Hindu Family. Further, it has been pleaded in para 2 that the agricultural land, the description whereof is mentioned in this para, is owned by HUF in which the plaintiff and defendants are having 1/2 share each. Further, it has been pleaded that the defendants are intending to alienate the suit property, and hence, the suit has been filed. It has been further submitted by learned counsel that the revenue record has been filed by the plaintiff in the trial Court in which except survey No. 157/7/1, which is in the exclusive name of defendant No.1 and survey No. 157/7/2, which is in the exclusive name of his son Mahesh Yadav and survey Nos. 157/5, 157/06, 1735 which have been recorded in the exclusive name of plaintiff, rest other survey numbers, namely 22, 27, 53/1, 54/2, 146, 152, 153, 154, 156, 471/3 and 471/4, the names of plaintiff and defendant No. 1 have been mentioned. Hence, it has been contended by learned counsel that the defendants be restrained from alienating the entire suit property which includes all the survey numbers mentioned in para 2 of the plaint since it is in the joint name of plaintiff and defendants.

9. So far as survey Nos. 157/7/1 and 157/7/2 recorded in the name of defendant No. 1 and defendant No.2 respectively are concerned, the contention of learned counsel for the petitioner/

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