JAGDISH Vs. GIRDHARI LAL SHARMA

JUDGEMENT

(1.) This Civil Misc. Appeal has been filed by the appellant-defendant no. 1 (for short, 'the defendant') against the order dtd. 10/2/2022 passed by Addl. District Judge No. 4, Jaipur District, Jaipur in Civil Misc. Case No. 16/2019 (80/2018), whereby the application for temporary injunction filed by the respondent no. 1-plaintiff-applicant (for short, 'the plaintiff) has been allowed.

(2.) Facts of the case are that the plaintiff filed a suit for declaration, cancellation of the decree and permanent injunction against the defendants. Alongwith the suit, an application for temporary injunction was also filed, which has been allowed by the trial court vide its order dtd. 10/2/2022. Hence, the present Civil Misc. Appeal has been filed.

(3.) Learned Sr. Counsel appearing for the defendant submits that the plaintiff Girdhari Lal is the grandson of Shyola @ Shyonarayan. He further submits that Ladu (great-grand father of plaintiff) had three sons Nathu, Om Prakash and Shyola @ Shyonarayan. Ladu was the khatedar of 1/2 part of the suit land and 1/2 part of the suit land was purchased by Nathu, Om Prakash and Shyola @ Shyonarayan jointly from Gopal and Govind S/o. Ram Kishan. In the year 1994, a revenue suit for division of 1/2 share in joint agricultural holdings of 37 bigha 12 biswa was filed by Nathu and Om Prakash against Shyola @ Shyonarayan, which was decreed by Assistant Collector (First), Jaipur vide judgment dtd. 3/6/1995. An appeal was filed against the said judgment before the Revenue Appellate Authority, the same was allowed and accordingly matter was remanded to the court below. Thereafter the Asstt. Collector (First), Jaipur vide its judgment dtd. 22/2/2001 again decreed the suit. The said judgment dtd. 22/2/2001 was challenged in appeal before the Revenue Appellate Authority, which was dismissed vide judgment dtd. 30/8/2005. Against the said judgment dtd. 30/8/2005 passed by the Revenue Appellate Authority, appeal was filed before the Board of Revenue and during the pendency of that appeal, plaintiff filed the present civil suit for declaration, cancellation of the decree, which was passed in the revenue suit, and permanent injunction. Subsequently, the appeal filed before the Board of Revenue was dismissed vide judgment dtd. 19/3/2020. He further submits that as per Sec. 8 of the Hindu Succession Act, the plaintiff being the grandson of Shyola @ Shyonarayan had no right to file the present suit claiming partition of the suit land during the life time of his father. The plaintiff alleged that the decree dtd. 22/2/2021 passed by the Asstt. Collector (First), Jaipur was obtained by fraud and collusion, but none of the party of the said revenue suit has challenged the said decree alleging the same to have been obtained by fraud and collusion. Rather the decree dtd. 22/2/2021 was passed on merits after recording evidence of both parties and after considering material on record. He further submits that even if the decree dtd. 22/2/2021 passed by Asstt. Collector (First), Jaipur is set-aside, relief of partition of agricultural land cannot be granted by the Civil Court in view of Sec. 53 of the Rajasthan Tenancy Act, but the application for temporary injunction filed by the plaintiff has been allowed by the trial court without considering the aforesaid facts.