RAMESH CHANDRA AGARWAL Vs. OM PRAKASH AGARWAL

JUDGEMENT

(1.) HEARD Sri Satish Chaturvedl, learned Counsel appearing on behalf of the appellant and Sri K. K. Dubey, learned Counsel appearing on behalf of respondents No. 1, 2 and 3.

(2.) THE instant first appeal from order has been filed against the order dated 7.11.2002, passed by Civil Judge (Senior Division) Jhansi in Original Suit No. 158 of 2002. An application 6 Ga -2 for grant of temporary injunction had been filed by the plaintiff and an ex parte injunction dated 21.5.2002, had been granted to him, a copy whereof has been filed along with affidavit supporting the stay application. While granting the ex parte temporary injunction the trial court has recorded that by virtue of compromise, property in dispute was to go to the share of the plaintiff and therefore, the compromise decree in Suit No. 105 of 1992 between the parties is binding upon them and the tenant (respondent No. 7 Life Insurance Corporation Ltd.) ought to either deposit the rent in the Court or under Section 30(2) of the U. P. Act No. 13 of 1972. Consequently the trial court by its ex parte injunction order restrained the respondents No. 1 to 6 from realizing the rent from Life Insurance Corporation.

(3.) LEARNED Counsel for the appellant has submitted that the main relief claimed in the present suit is to the effect that it be declared that the decision of panch dated 6.8.1991 be made a part of the judgment and decree dated 1.5.1993, passed in Original Suit No. 105 of 1992 and the ownership of the house No. 528/1 Civil Lines, Jhansi, be declared in favour of the plaintiffs. He has contended that unless title of the house in question is decided, neither the plaintiff nor the defendants are entitled to recover rent from the defendant No. 7 Life Insurance Corporation. It is argued that the earlier suit was decided between the parties on the basis of a family settlement but inadvertently decision of panch dated 6.8.1991, could not be filed in the said suit and therefore, the same could not be made a part of the decree dated 1.5.1993. It is contended that in view of the said decision of panch, the plaintiff appellant was clearly the owner of the house in dispute and therefore, prima facie case had been made out. It is stated that the respondent Nos. 5 and 6 had filed a Suit No. 105 of 1992 against the appellant and the respondents No. 1 to 4 for permanent injunction restraining them from alienating the property described in Schedule A and B of the plaint since it was unpartitioned property of the undivided Hindu family. The defendants of the suit did not file any written statement. However, on the basis of a compromise application dated 27.1.1993, the suit was decreed on 1.5.1993. It is stated that the compromise stipulated that the parties would be owners of the properties in accordance with the family settlement dated 1.2.1989 and decision of the panch dated 30.3.1989 and 6.8.1991. However, the decision of the panch dated 6.8.1991 was not produced by the defendants wherein the property in dispute finds mention at Item No. 7 of Schedule 'B'. Consequently the balance of convenience lies in favour of the plaintiff appellant and no irreparable loss could be said to have been caused to the defendants in case the rent was deposited by the Life Insurance Corporation in the Court during the pendency of the present suit.