The present misc. appeal is preferred by the appellants assailing the impugned order dated 02.06.2018 passed by learned Additional District Judge,
Sambhar Lake in Civil Misc. Case No. 10/2018 (Rukmani Devi And Ors. vs. Smt. Kailash Kanwar And Ors.) whereby learned Court below
dismissed the application of appellants- petitioners- plaintiffs submitted under Order 39 Rule 1 & 2 for temporary injunction.
The brief facts of the case are that the appellants have filed a civil suit on 17.11.2014 against the respondents in the court of learned Additional
District Judge, Sambhar Lake for partition and permanent injunction along with application seeking temporary injunction. It is pleaded in the application
of temporary injunction that the appellants and respondents no. 2 to 4 are brothers and sisters and respondent no. 5 is mother of appellants and
respondents no. 2 to 4. Late Shri Ganesh was grandfather of appellants and respondents no. 2 to 4 who died leaving behind him sons namely
Gheesalal, Laduram, Narayan and Harinarayan. Late Shri Ganesh had owned agriculture land bearing khasara no. 325, 326, 441 and 2813 measuring
60 bigha 6 bisva at Jobner,
Tehsil Sambhar, District Jaipur. Gheesalal, Laduram, Narayan and Harinarayan after death of Ganesh had acquired 1/4 share each of the ancestral
land. Unified of land was done in Jobner and by which Gheesalal, Laduram, Narayan and Harinarayan had become khatedar of khasara no. 286 of
324, 325 min and 326 measuring 38 bigha 11 bisva having equal share therein. Harinarayan has filed a revenue suit no. 04/1986 before the Sub
Divisional Officer Sambhar about the said land and another land against his brothers. The said revenue suit was decreed on 10.01.1991 whereby
Harinanarayan was declared khatedar of the land khasara no. 286/2 measuring 17 bigha accordingly the land was entered in jamabandi samvat 2070-
73 in his name. Harinarayan has died and the appellants and respondents no. 2 to 5 have 1/10 share being member of Hindu Undivided Family in the
ancestral land. It is also pleaded that another revenue suit was also filed by Harinarayan against Gulab Singh and Gheesalal and others in the court of
Sub Division Officer Sambhar for appointment of receiver relating to the land khasara no. 286 measuring 38 bigha 11 bisva wherein the Tehsildar,
Phulera was appointed as receiver on 08.01.1989.
The Board of Revenue in appeal/revision made order on 08.02.2006 of maintaining the status quo of record and site which is in existence. The land is
thus with receiver. Harinarayan during pending litigations and without having any legal necessity has sold 16/17 share measuring 16 bigha land to the
respondent no. 1 through registered sale deed dated 13.02.2006 against Rs. 10,00,000/- which is null and void to the interest and rights of the
appellants. Harinarayan has died on 28.04.2014. The appellants knowing the factum of sale after death of their father through advocate of Board of
Revenue had to file the suit for land 286/2 and has sought relief to declare the sale deed dated 13.02.2006 as null and void and also to restrain the
respondent no. 1 not to create third party interest by executing instrument on the basis of sale deed dated 13.02.2006 with application under Section 39
Rule 1 & 2 for temporary injunction.
Notices of said temporary injunction application were issued to respondents.
Respondent No. 1 in her reply submitted before the trial Court that the land was belonging to Ganesh and acquiring the khatedari by his sons each 1/ 4
share of the land. It was also pleaded that during lifetime of Harinarayan since partition took place in between him and his brothers so the land cannot
be treated as ancestral and belonging to Hindu Undivided Family. The appellants have no right in the suit land. The appellants had the knowledge of
sale deed dated 13.02.2006 and has filed the suit belatedly beyond period of limitation. Harinarayan has validly sold the suit land, which cannot be
questioned.
After hearing both the parties, learned trial Court vide impugned order dated 02.06.2018 dismissed the application seeking temporary injunction.
Aggrieved by the aforesaid order dated 02.06.2018, appellants- petitioners- plaintiffs filed this misc. appeal before this Court.
Mr. Ashok Kumar Mishra learned counsel appearing on behalf of appellants submits that serious questions are involved in the suit those are required
to be adjudicated in the main suit which constitutes prima facie case balance of convenience and irreparable loss in favor of the appellants. He submits
that earlier respondent No. 1 has filed an application for temporary injunction and an interim stay order was passed to maintain status quo of site and
record and also not to transfer the suit property which was continued up to withdraw the temporary injunction application dated 26.02.2018.
Respondent No. 1, thereafter in garb of compromise/ settlement has malafidly got changed the revenue entry in record in absence of appellants. He
submits that admittedly appellants are legal representatives of Harinarayan and are co-parceners in the joint hindu family property and they acquired 1/
10 share each in the disputed property. Without considering this fact, learned Court below wrongly rejected the application seeking temporary
injunction, therefore this misc. appeal may be allowed and the impugned order may be quashed and the application seeking temporary injunction may
be allowed.
Learned counsel relied on Ganduri Koteshwaramma And Anr. vs. Chakiri Yanadi And Anr. reported in 2011 (9) SCC 788 and Danamma alias Suman
Surpur And Another vs. Amar And Others reported in (2018) 3 SCC 343.
Per contra Mr. Prahlad Sharma learned counsel appearing on behalf of respondent No. 1 submits that Shri Hari Narayan executed a sale deed of the
disputed land in favour of respondent No.- 1 on 13.02.2006 and this suit was filed on 17.11.2014 and thereafter the application seeking temporary
injunction was filed on 24.05.2018. He submits that the death of Hari Narayan took place on 28.04.2014. He submits that the amendment in Hindu
Succession Act, 1956 came in force on 9th September, 2005 whereby the co-parcener rights were given to daughters.
He further submits that appellants- petitioners failed to disclose the date of death of Ganesh from whom the property in question was inherited and
appellants also failed to disclose their date of births, which is important for deciding application seeking temporary injunction.
He submits that admittedly after death of Ganesh, a suit for partition was filed by Harinarayan- father of appellants and the property of late Shri
Ganesh was partitioned among his legal representatives vide judgment dated 10.01.1991 and thereafter in the lifetime of Harinarayan, he sold the
property in question on 13.02.2006 to respondent No. 1 through registered sale deed after receiving due consideration.
He submits that the possession of the property in dispute was also transferred on 13.02.2006 at the time of sale and Harinarayan died on 28.04.2014,
therefore since the amended provision of Hindu Succession Act came in force on 9th September, 2005 and prior to it the property of Ganesh has
already been partitioned between his legal heirs, as such prima facie no right devolves in appellants- petitioners. Further, the sale deed was executed
on 13.02.2006 and suit was filed on 17.11.2014 and T.I. Application was filed on 24.05.2018, this delay also dis-entitled the petitioners- appellants for
temporary injunction which is equitable relief. He submits that considering all these facts, learned Court below rightly dismissed the application seeking
temporary injunction, therefore there is no merit in this misc. appeal, same may be dismissed.
I have considered the submissions made at Bar.
In the matter of Ganduri Koteshwaramma And Anr. vs. Chakiri Yanadi And Anr. (Supra) Hon’ble Supreme Court held that on and from
September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. Daughter of a co-
parcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son, which is not disputed.
Here in the case in hand, since property has already been partitioned before 9th September, 2005 by the Court below and same has already been
transferred, therefore this judgment doesn’t help the appellants.
In the matter of Danamma alias Suman Surpur And Another vs. Amar And Others (Supra) Hon’ble Supreme Court held that :-
“On taking note of the provisions of Section 6 of the HS Act, 1956, as it stood prior to its amendment by the Amendment Act, 2005, Explanation 1
to that section states that the interest of the deceased in Mitakshara coparcenary property shall be deemed to be the share in the property that would
have been allotted to him if the partition of the property had taken place immediately before his death, irrespective whether he was entitled to claim
partition or not. This Explanation came up for interpretation before the Supreme Court in Anar Devi, (2006) 8 SCC 656. The said case clearly negates
the view taken by the High Court in the impugned judgment.†which is also not disputed.
Here in the case in hand, admittedly, after death of Ganesh the grand father of petitioners Harinarayan who is father of petitioners in whose foot steps
petitioners claim their ancestral rights filed a suit for partition against his brothers, which was decided on 10.01.1991, as such prior to 9th September,
2005, the suit property was devolved in Harinarayan vide impugned judgment dated 10.01.1991 in partition suit. Thereafter, Harinarayan executed a
sale deed in favour of respondent No. 1 on 13.02.2006 and after passing of 8 years, suit was filed by the appellants- petitioners on 17.11.2014 and
thereafter the temporary injunction application was filed on 24.05.2018 i.e. after more than 12 years. Since, partition has attained finality on 10.01.1991
and that judgment was not challenged by the appellants, therefore neither prima facie case is find in favour of the appellants nor balance of
convenience and irreparable loss.
Accordingly this misc. appeal devoids merit which is hereby dismissed and the impugned order is affirmed.
However, it is made clear that any observation made in this order shall not effect the findings of the trial Court in the main suit.
