Govind Das and anr Vs. Kandas - Court Judgment

S.B.Civil Writ Petition No.598/2012 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER

Govind Das & anr.

versus Kandas S.B.Civil Writ Petition No.598/2012 under Article 226 and 227 of the Constitution of India.

Date of Order : 17.1.2014 PRESENT HON'BLE Mr.ATUL KUMAR JAIN, J.

Mr.Dilip Mulchandani,for the petitioneRs.Mr.L.L.Sharma, for the respondent.

BY THE COURT: By order dated 13.1.2011 in Civil Misc.

Case No.3/2011 titled as Kandas versus Govind Das & ORS.the court of Civil Judge (JD).Jodhpur City, Jodhpur had dismissed the application for temporary injunction which was filed by Kan Das.

The order dated 13.1.2011 of that court was challenged in appeal by Kan Das and in this regard Civil Appeal No.12/2011(112/2011) decided was by the Addl.

District Judge(FT) No.3, Jodhpur Metropolitan, Jodhpur on 19.10.2011 and the order of the lower court was set aside and a temporary injunction was granted in S.B.Civil Writ Petition No.598/2012 2 favour of Kan Das.

Now petitioners Govind Das s/o Badri Das and Smt.

Santosh w/o Gopal Das have challenged the order dated 19.10.2011 of the Addl.

District Judge (FT) No.3, Jodhpur Metropolitan, Jodhpur in this petition which has been filed under Article 226 and 227 of the Constitution of India.

I have heard both the parties and I have perused the documents which have been submitted by the parties in this file.

I have perused the copy of the power of attorney and copy of the report of the Commissioner also which are part of the file.

I have perused the copies of the affidavits of Smt.

Kamla Bai, Smt.

Uchhab Kanwar, Santok, Banshi Lal and Kishna Ram also.

Prima facie, it appears that the suit property (temple along with residential premises) was owned by Badri Das who was having a Patta of this property and who was in possession of this property.

Badri Das executed a Will regarding this property in favour of his wife Smt.

Shobha Devi and after death of Badri Das, Shobha Devi became sole owner of the suit property and she was in possession also.

Then Smt.

Shobha Devi had allegedly executed a registered Will in favour of Kan Das and Gopal Das regarding the suit S.B.Civil Writ Petition No.598/2012 3 property.

Thenafter in the year 2008 Smt.

Shobha Devi also expired and then Kan Das and Gopal Das became its owner on the basis of said Will.

It has been alleged that after death of Smt.Shobha Devi, the possession of residential premises was with Kan Das and possession of temple was with Gopal Das.

Thus, the temple in question was in possession of Gopal Das and so Smt.

Santosh Devi, who is wife of Gopal Das and one person Govind Das who is son of Badri Das have claimed to be in possession of this temple and on the basis of that possession, they want that they should be allowed to complete the construction work in the temple.

Nine photos of incomplete construction of temple have been submitted by Govind Das and Smt.

Santosh Devi.

The fiRs.appellate court has relied upon Banwari Lal v.

Shri Shiv Prasad, 1999 WLC(Raj.) UC428 In this case it was held that a party can protect its possession but asking for permitting the party to raise the construction is beyond jurisdiction and to that extent, orders of the courts below were called perveRs.and to that extent the orders of the courts below were set aside.

The parties were directed to keep the status quo during the pendency of the suit.

S.B.Civil Writ Petition No.598/2012 4 In this case, following other rulings have also been submitted:- (1) Zaheer Ahmed v.

The Municipal Corporation, Jaipur RLW19982) Raj.

741 In this case it was held that in a suit for temporary injunction, the prima facie case, balance of convenience and irreparable loss will have to be proved by the parties who seeks injunction against the other party.

In this case it was held that prima facie case means a substantial question raised by the one party bona fidely which at a glance needs investigation and inquiry.

It was further held in this case that it is a bounden duty of the trial court to protect an aggrieved party by granting the interim relief of injunction or to maintain the status quo as far as practicable while dealing with and deciding the matter till the suit is heard and finally decided, since both the parties to the suit will have sufficient opportunity to establish or repel the respective contentions by leading evidence for and in rebuttal to the same.

(2) Maharwal Khewaji Trust(Regd.).Faridkot versus Baldev Dass, RLW20051) (SC) 102 In this case also the court did not think it fit to issue temporary injunction because the facts of the case did not make any extraordinary ground for permitting the respondent to put S.B.Civil Writ Petition No.598/2012 5 up construction and alienate the same.

I have perused all these rulings.

The judgment of Banwari Lal(supra) is perfectly applicable at this stage to the case of the petitioners and the petitioners at this stage cannot be allowed to challenge the veracity of the order dated 19.10.2011 passed by the Addl.

District Judge(FT) No.3, Jodhpur Metropolitan, Jodhpur.

It cannot be said that the principles of prima facie case, balance of convenience and irreparable loss have not been duly considered at all which is by the appellate court and so the impugned order is not at all assailable which is hereby affirmed as such.

The petition filed by the petitioners Govind Das and Smt.

Santosh deserves to be dismissed, which is hereby dismissed.

The stay petition also stands disposed of accordingly.

However, it is made clear that any observation made in this order will not affect the merits of the case.

The trial court is further directed to decide the suit expeditiously.

A copy of this order be sent to both the courts below immediately.

(ATUL KUMAR JAIN),J.

Mlt