1 M.A No.3932/2011 HIGH COURT OF MADHYA PRADESH AT JABALPUR MISC APPEAL NO.3932/2011 APPELLANTS : RAJ KUMAR AND OTHERS. Vs. RESPONDENTS : SUMAN AND OTHERS Present : Hon'ble Shri Justice R.S. Jha. For the appellants : Shri Ravish Agrawal, Senior Counsel with Shri Avinash Zargar, Advocate. For respondent nos.1,2 & 3 : Shri Darshan Singh, Advocate. For respondent no.4 : Shri J.P. Sanghi, Senior Counsel with Shri Ajay S.K. Shukla, Advocate. --------------------------------------------------------------------------------------
JUDGMENT(22/01/2013) This appeal has been filed by the appellants/plaintiff being aggrieved by order dated 16.09.2011 passed by the First Additional District Judge, Betul in Civil Suit No.53-A/2011 whereby the application filed by the appellants seeking injunction under Order 39 Rule 1 & 2 of the Code of Civil Procedure, has been dismissed.
2. Though the litigation between the parties has a chequered history, but to state briefly, the dispute between the parties arises in respect of 7.01 acres of Khasra Nos.1218/1 and 1219/1, Patwari Halka No.54 of village Tikari, District Betul. 2 M.A No.3932/2011 3. The appellants are sons of Kashi Prasad Verma, son of Rambaksh, while the respondent nos.1, 2 & 3 are the daughters of Ganga Prasad, the second son of Rambaksh. Admittedly, the partition of the property of Rambaksh took place between Kashi Prasad and Ganga Prasad in the year 1974 which incorporated a clause creating a right of preemption inter se between them.
4. The dispute in the present case relates to the property which fell in the share of Ganga Prasad and thereafter on his death on 1.2.1981 in the share of his daughters respondent nos.1 to 3. It is stated that on the death of Ganga Prasad, Kashi Prasad had filed an application under section 22 of the Hindu Succession Act, seeking right of preemption which was dismissed as not maintainable pursuant to which he had filed a regular civil suit which was registered as C.S No.105-A/88 on 3.11.1988 claiming right to preemption in respect of 7.77 acres of land comprising of Khasra Nos.1218/1 and 1219/1. In the said civil suit the respondent no.4 was also impleaded as a party and in that case a written statement was filed by respondent nos.1, 2 & 3 supporting his claim and thereafter an application under Order 23 Rule 3 CPC, for compromise was filed by the appellant nos.1 & 2 and respondent nos.1 to 3 which was opposed by respondent no.4. However, the said suit came to be dismissed in default on 25.4.2000. 3 M.A No.3932/2011 5. It is submitted by the learned Senior Counsel for the appellants that on the dismissal of the suit filed by Kashi Prasad for default, i.e. C.S No.105-A/88, the appellants did not take up any proceedings for restoration as the matter was settled between them and the respondent nos.1 to 3 and consequently two sale deeds dated 2.5.2000 and 3.5.2000 were executed in their favour in respect of the disputed land.
6. Prior to the dismissal of the suit, the respondent no.4 Sunil Udaipure had instituted a separate suit on 22.6.1993 for specific performance of the agreement dated 6.11.1987 said to have been executed by respondent nos.1 to 3 for sale of the disputed land, area 7.77 acres, which was registered as Civil Suit No.7-A/1993 and later renumbered as Civil Suit No.39-A/2005.
7. It is stated by the learned Senior Counsel for the appellants that in the said suit an affidavit dated 21.8.1993 was filed by the respondent no.1 on behalf of respondent nos.1 to 3 denying the agreement dated 6.11.1987. It has further been stated that Kashi Prasad, father of the appellants who was impleaded as defendant no.4 in the said suit, died during the pendency of the suit on 11.4.1995 pursuant to which an application was filed by Sunil Udaipure under Order 22 Rule 4 CPC for bringing appellant nos.1 & 2 on record as his legal representatives which was allowed by 4 M.A No.3932/2011 order dated 13.4.1996 by the trial court but the said order was not complied with by the respondent no.4. It has further been alleged that respondent nos.1 to 3 executed a general Power of Attorney in favour of appellant nos.1 & 2 on 13.2.1998 and thereafter a written statement was also filed by respondent nos.1 & 3 on 14.5.1999 denying the agreement. It is stated that on 11.1.2001, after execution of the sale deed in the year 2000 and suppressing the fact of passing of the order dated 13.4.1996, the respondent no.4 filed an application under Order 1 Rule 10 CPC for impleading appellant nos.1 & 2 as defendants in the suit which was rejected on 19.2.2001. Thereafter the appellants had also filed an application under Order 1 Rule 10 CPC on 3.3.2003 praying for being impleaded in the suit which was rejected by the trial court on 12.9.2003 against which the appellant nos.1 & 2 had filed a Writ Petition before this Court which was registered as W.P No.27761/2003 and which came to be dismissed by order dated 10.12.2003. It is alleged that on 22.2.2004 the respondent no.1 Suman filed an affidavit in C.S No.39-A/2005 stating that she had no authority to file a written statement in the suit filed by respondent no.4 Sunil Udaipure and again filed an application on 7.3.2005 stating that she did not wish to adduce any evidence, pursuant to which the suit filed by the respondent 5 M.A No.3932/2011 no.4 was decreed on 22.7.2005. Execution proceedings have been initiated by the respondent no.4 which are pending before the competent court in which objections, filed by the subsequent purchasers of the land, have been rejected and further proceedings in the matter are pending before the competent court. It has also been brought on record that on 7.2.2004 the appellant nos.1 & 2 had filed a civil suit which was registered as Civil Suit No.15-A/2004 against the respondent nos.1 to 4 for declaring the agreement dated 6.11.1987 as null and void which came to be dismissed on account of non-payment of advalorem court fee on 16.3.2005. Thereafter the appellants have filed the present Civil Suit which has been registered as C.S No.53-A/2011 for declaration that the judgment and decree obtained by the respondents in Civil Suit No.39- A/2005, is null and void on account of collusion and fraud and that the agreement dated 6.11.1987 be declared as a forged document. The appellants had also filed an application under Order 39 Rule 1 CPC seeking injunction in the said suit and the respondent no.4 had filed objections as to the maintainability of the suit. The aforesaid suit of the appellants came to be dismissed on 15.12.2009 while rejecting the application filed by the appellants under Order 39 Rules 1 & 2 CPC, being aggrieved by which the appellants had filed F.A No.65/2010 before this Court. 6 M.A No.3932/2011 8. The First Appeal was ultimately allowed by the Division Bench of this Court by judgment dated 17.2.2011 and the matter was remanded back to the trial court for decision of the suit in accordance with law as well as the application under Order 39 Rules 1 & 2 CPC in accordance with the principles established by law in the following terms:-
“12. It will, however, not be out of place to mention that a temporary injunction of execution of judgment and decree is not alien to a suit instituted on the ground of fraud.
13. Division Bench of this Court in Surendra Singh v Lal Sheoraj :
1975. MPLJ 5 while dwelling upon twin issues as to: (a) Whether in a suit instituted by a judgment-debtor on the ground of fraud or any such other ground, a temporary injunction can be granted restraining the decree-holder from executing his decree against the plaintiff. (b) When a suit is instituted on the ground that the decree is not binding on the plaintiff and that the execution of the decree will be prejudicial to the plaintiff's right, by a person, who was not a party to the suit in which the decree was passed, can a temporary injunction be issued to restrain the decree-holder from executing his decree against his judgment-debtor.”
. Observed :
7. M.A No.3932/2011
“12. Since a Civil Court is competent in exercise of its inherent jurisdiction to grant a temporary injunction independent of the provisions of the Rules 1 and 2 of Order 39 of the Code of Civil Procedure, the consideration that the execution of a decree or order does not amount to an injury within the meaning of Order 39, Rule 2 of the Code of Civil Procedure is not of much consequence. We may, however, refer to certain decisions in which it has been held that the word "injury" in sub-rule (1) of Rule 2 of Order 39 of the Code of Civil Procedure should be liberally construed and that even the execution of a decree may amount to an injury in certain cases. In Umapati Choudhari and others v. Subodh Chandra Choudhuri and others (AIR 195.Cal
377) it was held that the Court should give the widest interpretation to the word "injury" and that an injunction can be granted to restrain the decree-holder from giving effect to a decree. In Kittamma and another v. B. Subba Rai and another (AIR 195.Mys
75) it was held that the word "injury" in Order 39, Rule 2 of the Code of Civil Procedure means, any invasion or infraction of a legal right giving rise to a right of action at the instance of the party claiming that right. It was further held in that case that if a person seeks to execute a totally invalid order, the 8 M.A No.3932/2011 person against whom such execution is sought has the right to say that he shall not be made to suffer the consequences of an invalid order and a temporary injunction can be granted in such a case. 15….Ordinarily a party in whose favour a decree or order has been passed holds a prima facie title to the property or the right which was the subject matter of the decree and very strong evidence would be necessary to rebut the presumption of prima facie title in favour of the decree- holder. Decree-holder should not ordinarily be restrained from enjoying the fruits of the decree obtained by him after a successful litigation. Merely, because a party chooses to file a suit challenging the decree or order on certain grounds, would not suffice to destroy the presumption in his favour and a very heavy burden would lie on the applicant to produce strong and cogent prima facie evidence to satisfy the Court that the grounds on which the decree or order is challenged are fairly strong and that there is a reasonable possibility of the success of such suit….”
14. But, that is for the trial court to examine being an original court of jurisdiction. It has to form its own opinion in the given facts of the present case, as to whether irreparable injury would be caused or whether the balance of 9 M.A No.3932/2011 convenience is in their favour. As was observed in Shankarlal Debiprasad Rathore v. State of M.P. and others (1978 MPLJ 419 .
“4. Although it is often said that plaintiff must show a prima facie case in support of the right claimed by him in the suit before he can be granted temporary injunction, the "real thing to be seen is only that plaintiffs claim is not frivolous or vexatious; in other words that there is a serious question to be tried. It is not the function of the Court at this stage to resolve disputed questions of fact or difficult questions of law which should be left to be decided at the conclusion of the trial. After the plaintiff succeeds in showing that there is a serious question to be tried, he has further to show that the balance of convenience lies in favour of granting temporary injunction. In this connection, it is relevant to enquire whether the plaintiff can be adequately compensated by an award of damages if he succeeds in establishing the right claimed. The Court should also consider whether the defendant can be adequately compensated if the plaintiff is directed to pay damages for the loss resulting to him from the grant of injunction in case ultimately the suit fails. The extent of disadvantages to each party which cannot be compensated by award of damages in the event of his succeeding in the suit is a very material consideration 10 M.A No.3932/2011 for determining where balance of convenience lies. If such disadvantages may be of equal strength, the relative strength of each party’s case as shown from documents and affidavits may be assessed. If relevant competiting factors are equally balanced, prudence may lie in maintaining the status quo. These principles are to be generally observed in the grant of temporary injunctions, but there may be special factors of a particular case which may require a different approach. For example, in cases where the plaintiff and defendant both claim to be in possession of the suit property, temporary injunction should not be granted restraining the defendant from interfering with the plaintiff’s possession unless the Court finds a very strong probability that the plaintiff is in possession. Further, the grant of injunction in such cases must be on the condition that the plaintiff will pay damages to the defendant in case ultimately he is found to be out of possession."
15. Having thus considered, we are of the opinion that the trial court faltered in dismissing the suit in limine while considering the application under Order 39 Rule 1 and 2. Instead, the trial court ought to have sought the written statement, framed the issues and decided the suit on merit. Therefore, while setting aside the judgment and decree dated 15.12.2009 passed in Civil Suit No.11 M.A No.3932/2011 58 A/2008 we remit the suit for its trial on merit. In the peculiar facts of present case we also set aside the order rejecting the application under Order 39 Rule 1 and 2 CPC and direct the trial court to decide the same on merit as to: (i) whether the applicants have a prima facie case in their favour, (ii) whether an irreparable injury will be caused to the applicants if the injunction is not granted during the pendency of the legal proceedings, (iii) whether, the balance of convenience is in favour of the applicants.
15. In the meantime the status quo in respect of suit property to continue as per order dated 4.2.2010 till the decision of application under Order 39 Rule 1 and 2 CPC.
16. In the result appeal is allowed to the extent above. However, no order as to costs.”
9. The impugned order in the present appeal dated 16.9.2011 has been passed by the First Additional District Judge, Betul again dismissing the application under Order 39 Rules 1 & 2 CPC, filed by the appellants after remand of the matter by this Court.
10. It is submitted by the learned Senior Counsel appearing for the appellants that a Division Bench of this Court in F.A No.65/2010 has remitted the matter back to the trial court with a direction to give an opportunity to the defendants to file a written statement, frame issues and thereafter decide the suit on merits and while doing so, the order rejecting the application under Order 39 Rules 1 & 2 dated 15.12.2009 was 12 M.A No.3932/2011 also set aside and the trial court was directed to decide the same afresh on merits after taking into consideration the fact as to whether the appellants have a prima facie case in their favour; whether irreparable injury will be caused to the appellants if the injunction is not granted; and whether the balance of convenience was in their favour and in the meanwhile, status quo in respect of the suit property, as was ordered by interim order dated 4.2.2010 passed in the First Appeal, was directed to be maintained but inspite of the specific directions issued by the Division Bench of this Court, the court below has rejected the application for injunction, filed by the appellants, without giving any finding in respect of prima facie case, balance of convenience or irreparable injury.
11. It is further submitted that the court below has rejected the application for injunction filed by the appellants by reiterating that the appellants' application for being impleaded as parties in Civil Suit No.39-A/2005 filed by respondent no.4 had been rejected and the order of rejection has been affirmed by this Court in W.P No.27761/2003 and that the appellants have purchased the property in question vide sale deed dated 2.5.2000 and 3.5.2000 during the pendency of the Civil Suit No.39-A/2005 and, therefore, they cannot object to the decree in favour of respondent no.4 in view of the provisions of Section 52 of the Transfer of 13 M.A No.3932/2011 Property Act, 1882 (hereinafter referred to as 'the Act'), therefore, they have no prima facie case.
12. It is submitted that the courts below has totally failed to take into consideration the fact that the suit filed by the appellants was for declaring the judgment and decree dated 22.7.2005 passed in C.S No.39-A/2005 as null and void on the ground that it was a collusive decree and, therefore, the appellants could not be non-suited by applying section 52 of the Act, which specifically carves out an exception in respect of collusive decrees.
13. The learned Senior Counsel for the appellants further stated that the appellants have enumerated several facts and instances to establish collusion and fraud for declaring the judgment and decree in favour of respondent no.4 as null and void, which have been enumerated in paras 9 to 12 of the plaint. It is submitted that the appellants have specifically pointed out that the judgment and decree dated 22.7.2005 in C.S No.39-A/2005 was obtained by the respondent no.4 without bringing to the notice of the court the previous written statements filed by respondent nos.1 to 3 in C.S No.58-A/99 filed by Kashi Prasad; the affidavit dated 21.8.1993 filed by respondent nos.1 to 3 denying the agreement dated 6.11.1987 which was on record in C.S No.39-A/2005; the change of stand of respondent nos.1 t”
14. M.A No.3932/2011 after withdrawal of the general power of attorney executed in favour of the appellants in the aforesaid civil suit; the applications filed by respondent nos.1 to 3 dated 22.2.2004 and 7.3.2005 refusing to file a written statement and stating that they do not wish to adduce any evidence; the order passed by the court below dated 13.4.1996 in C.S No.39- A/2005 allowing the application filed by respondent no.4 for substituting the legal representatives of the deceased Kashi Prasad, i.e. the appellants on record; the non-compliance of the aforesaid order by the respondent no.4; the fact that the suit was decided and allowed without impleading the appellant nos.1 & 2, who were necessary parties, being the legal representatives of the deceased defendant no.4 and other issues, but the court below, while deciding the aforesaid application, has not taken into consideration the aforesaid aspects for determining as to whether the appellants have a prima facie case only on the ground that the appellants Writ Petition No.27761/2003, filed against the order rejecting their application for being impleaded as defendants, was dismissed by this Court totally overlooking the fact that the aforesaid facts were not placed before the writ court.
14. It is further stated that the land in question had been sold by appellant nos.1 & 2 to appellant nos.3 to 5 and has thereafter been sold to about 182 persons and several 15 M.A No.3932/2011 permanent structures are standing on the disputed land as on date. It is stated that since the very inception of the suit there has been an interim order in favour of the appellants directing maintenance of status quo in respect of the possession which was continued by this Court in F.A No.65/2010 and remained in operation till the passing of the impugned order as well as during the pendency of the present appeal and, therefore, undisputedly the possession of the property in question continued with the appellants or the persons who have subsequently purchased the land from the appellants and, therefore, balance of convenience is also in favour of the appellants and they would be put to irreparable loss in case they are dispossessed and the respondent no.4 is permitted to create third party rights on the disputed land.
15. It is stated that in view of the aforesaid facts and circumstances, as the appellants have raised several issues which required to be decided in the civil suit after adducing evidence, as directed by the Division Bench of this Court in the First Appeal, and as the appellants have made out a prima facie case and the balance of convenience is in their favour, the impugned order passed by the trial court deserves to be set aside and the application under Order 39 Rules 1 & 2 CPC filed by the appellants deserves to be allowed. 16 M.A No.3932/2011 16. The submission of the learned Senior Counsel for the appellants is vehemently opposed by the learned Senior Counsel for the respondent no.4. It is submitted that the appellants have no right to assail the judgment and decree passed by the competent court in Civil Suit No.39-A/2005, filed by respondent no.4, which was decreed on 22.7.2005 as they were not party to the same moreso in view of the fact that their application for being impleaded as parties was rejected by the trial court on 12.9.2003 and the order of the trial court has been affirmed by this Court by order dated 10.12.2003 passed in W.P No.27761/2003. It is further stated that the appellant nos.1 & 2 have in fact committed fraud inasmuch as they misled respondent nos.1 to 3 into filing a written statement in their support in Civil Suit No.39-A/2005 and when the respondent nos.1 to 3 became aware of the same, they withdrew the general Power of Attorney and thereafter contested their case on their own on the basis of which the judgment and decree dated 22.7.2005 has been passed which has not been obtained by collusion or fraud by the respondents.
17. It is submitted that the appellants are admittedly purchasers of the land in question during the pendency of the suit filed by respondent no.4 and, therefore, cannot be permitted to assail the judgment and decree in view of the provisions of Section 52 of the Transfer of Property Act. The 17 M.A No.3932/2011 learned Senior Counsel for respondent no.4 has relied upon the decisions rendered in the cases T. Arivandandam vs. T. V. Satyapal and another, AIR 197.SC 2421.Radhakishan Laxminarayan Toshniwal vs. Shridhar Ramchandra Alshi and others, AIR 196.SC 1368.M/s Gujarat Bottling Co. Ltd. and others vs. Coca Cola Company and others, AIR 199.SC 2372.Ballabhdas Lachminarayan vs. Sobhaji Kesharesingh and another, 1947 NLJ 240.Manot Kumar Sharma vs. Mahadev Prasad and others, 2000 (1) JLJ 324.Usha Sinha vs. Dina Ram and others, 2008(4) MPLJ 14 and Guruswamy Nadar vs. P. Lakshmi Ammal (dead) through LRS. And others, 2008 (4) MPLJ 46 in support of his submission.
18. The learned Senior Counsel for the respondent no.4 further contended that the appellants, who are sons of the deceased Kashi Prasad, have no right to preemption as claimed by them not do they have any right to file the suit and in such circumstances the trial court has rightly rejected their application for injunction.
19. The learned Senior Counsel for respondent no.4 has also brought on record the fact that in the execution proceedings filed by respondent no.4 an order had been passed by the executing court directing respondent no.4 to 18 M.A No.3932/2011 furnish the names of the subsequent purchasers against which the respondent no.4 had filed a Writ Petition which was registered as W.P No.3955/2008 and was allowed by order dated 2.4.2008 with a direction to the executing court to issue warrant of possession with regard to the area covered by the decree and to grant possession of the same to the appellants.
20. It is submitted that on the passing of the said order certain subsequent purchasers had thereafter filed an application for review/modification of the order dated 2.4.2008 passed by this Court in W.P No.3955/2008 which was registered as MCC No.1107/2008 and the order passed by this Court was modified giving liberty to the persons in possession to file an application under Order 21 Rule 97 CPC in the execution proceedings which were directed to be decided without being influenced by any observations made by this Court in the order passed in W.P No.3955/2008 preferably within two months, but in view of the present proceedings taken up by the appellants in which interim orders have been passed, the order passed by this Court in the aforesaid Writ Petition has not been complied with and the respondent no.4 has not been able to get the decree executed.
21. It is submitted that as the appellants have no prima 19 M.A No.3932/2011 facie case and as the balance of convenience is not in their favour, the courts below has rightly rejected the application for injunction filed by the appellants which does not warrant any interference by this Court in the present appeal.
22. The learned counsel appearing for respondent nos.1 to 3 submits that the appropriate remedy of the appellants is to take up proceedings under Order 21 Rule 97 CPC by filing objections before the executing court and in such circumstances the present appeal and for that matter the suit filed by the appellants is not maintainable and, therefore, the appeal deserves to be dismissed.
23. I have heard the learned counsel for the parties at length.
24. In the present case I am only required to decide as to whether the impugned order passed by the courts below dated 16.9.2011 suffers from any perversity or material irregularity warranting interference in the present appeal. The issues regarding the merits of the rival contention of the parties are not required to be gone into by this Court at this stage as the Civil Suit is still pending adjudication, moreso in view of the fact that a Division Bench of this Court in F.A No.65/2010 has specifically directed the trial court to decide the issues on merits after the written statement is filed; issues are framed and evidence is adduced. 20 M.A No.3932/2011 25. It is pertinent to note that the Division Bench of this Court in F.A No.65/2010 had further directed the trial court to decide the application under Order 39 Rule 1 & 2 CPC, filed by the appellants on the three settled principles enumerated therein and, therefore, the court below was and is bound to decide the application for injunction accordingly.
26. From a perusal of the record it is worth noting that the present respondents have raised the same objections against the maintainability of the present appeal and suit as had been raised by them in F.A No.65/2010 which is clear from a perusal of para nos.5 & 6 of the judgment passed in the first appeal by the Division Bench dated 17.2.2011, inspite of which the Division Bench, after hearing the learned counsel for the parties in that respect, remitted the matter back to the trial court for adjudication on merits meaning thereby that the objections as to maintainability was not accepted and in fact ignored by the Division Bench of this Court.
27. In view of the aforesaid facts and circumstances, as the Division Bench of this Court has directed the trial court to decide the suit and the application for injunction inspite of the objections regarding maintainability of the suit based on the provisions of Order 21 Rule 97 CPC and Section 52 of the Transfer of Property Act, I do not find any reason to again look into and decide the same objections in view of the 21 M.A No.3932/2011 aforesaid decision of the Division Bench in F.A No.65/2010. It is further observed that in view of the order passed by the Division Bench in F.A No.65/2010 the effect and impact of the order passed in W.P No.27761/2003 on the suit filed by the appellants and their plea of collusion and fraud is also required to be decided by the trial court after evidence is adduced while finally deciding the suit and cannot be decided at this stage.
28. Before I proceed any further to decide the appeal against an order rejecting the application seeking injunction, it is observed that the appellants have filed the suit for declaring the judgment and decree passed in C.S No.39- A/2005 as null and void on the ground that it is a collusive decree and has specifically taken a plea that they are not prohibited from doing so under Section 52 of the Transfer of Property Act, and that the aforesaid issue and other related issues have to be decided on merits after the written statement is filed, issues are framed and evidence is adduced in view of the specific directions to that effect issued by a Division Bench of this Court in F.A No.65/2010.
29. In view of the aforesaid facts, the reliance place by the learned counsel for the respondents on the judgments of the Supreme Court in the cases of T. Arivandandam vs. T. V. Satyapal and another, AIR 197.SC 2421.Radhakishan 22 M.A No.3932/2011 Laxminarayan Toshniwal vs. Shridhar Ramchandra Alshi and others, AIR 196.SC 1368.M/s Gujarat Bottling Co. Ltd. and others vs. Coca Cola Company and others, AIR 199.SC 2372.is misplaced and misconceived as they have no applicability in the present appeal at this stage, as the issue of collusion and fraud was not involved therein, whereas the issues raised by the appellants in the present suit is that they are specifically saved from the rigor of Section 52 of the Act as they have alleged that the decree obtained by respondent no.4 is a collusive decree which issue has yet to be decided in the pending suit.
30. The only issue, as stated above, which requires to be looked into by this Court in the present appeal is regarding existence of a prima facie case, balance of convenience and irreparable injury. As the appellants, before this Court, have asserted that the respondent nos.1 to 3 had filed a written statement acceding to the claim of the appellants in C.S No.58-A/99; that they had filed an affidavit on 21.8.1993 denying the agreement in C.S No.39-A/2005 that the collusive decree was obtained without impleading the appellants who were necessary parties although the trial court, on an application filed by respondent no.4 himself, had passed an order on 13.4.1996 in C.S No.39-A/2005 directing the appellant nos.1 & 2 to be brought on record as legal representatives of deceased Kashi Prasad which was No.23 M.A No.3932/2011 done by respondent no.4; that admittedly the respondent no.1 had executed a general Power of Attorney in favour of the appellants during the subsistence of which respondent nos.1 to 3 has sold the land to the appellants; that as thereafter the respondent nos.1 to 3 had stated that they had no power or authority to file a written statement and did not wish to adduce any evidence; and that civil suit No.39-A/ 2005, filed by respondent no.4, was decreed by judgment and decree dated 22.7.2005 without taking into consideration any of the aforesaid and other issues which have been specifically raised in the present proceedings and are required to be decided in the suit as directed by the Division Bench of this Court in F.A No.65/2010, only after issues are framed and evidence is adduced as they are not admitted facts, therefore, I am of the considered opinion that the appellants have made out a prima facie case in the present appeal.
31. Furthermore as it is also undisputed that the appellants and the persons who have purchased the land through them are in possession of the property and that the decree has not been executed till date as, during the pendency of the entire proceedings, there has been an interim order directing the parties to maintain status quo in respect of possession and alienation and, therefore, I am also of the opinion that the balance of 24 M.A No.3932/2011 convenience is also in favour of the appellants and they would suffer irreparable injury in case the status of the property is changed till final decision in the suit.
32. It is clarified that any observations in respect of any issue made by this Court in the present appeal only relates to formation of a prima facie opinion and would not and cannot be taken into consideration by the trial court while adjudicating the matter finally on the basis of the oral and documentary evidence adduced by the parties. It goes without saying that all the issues raised before this Court relating to the merits of the case are left open to be decided in the suit.
33. In view of the aforesaid facts and circumstances, the appeal filed by the appellants is allowed. The impugned order dated 16.9.2011 passed by the First Additional District Judge, Betul in Civil Suit No.53-A/2011 is set aside and it is directed that status quo in respect of possession of the property in dispute shall be maintained by the parties. It is further directed that neither of the parties shall create any third party right or alienate the same till disposal of the suit. It goes without saying that the trial court shall expedite the disposal of the suit at the earliest. 25 M.A No.3932/2011 34. The appeal, filed by the appellants, is accordingly allowed. In the facts of the case there shall be no order as to the costs. ( R. S. JHA ) JUDGE 22 01/2013 mms/-