MOHARILAL Vs. MURLIDHAR

JUDGEMENT

(1.) The defendants-appellants are challenging the order dated 21.10.2005 passed by the Addl. District & Sessions Judge (Fast Track) No. 2, Sikar, Camp Srimadhopur, whereby the application under Order 39 Rule 1 & 2 CPC filed by the respondent-plaintiff has been allowed. The learned Judge has restrained the defendant-appellants from interfering in the peaceful possession of the respondent-plaintiff.

(2.) The brief facts of the case are that in Village Srimadhopur, District Sikar, three Khasras, bearing Khasra No. 1507,1774 and 1813, belonged to three brothers, namely Narsingh Prasad, Murlidhar and Mothuram. The three brothers had l/3rd share each in each of these Khasras. However, 40 years ago an oral partition took place between them, whereby Khasra No. 1507 went into the share of Narsingh Prasad, Khasra No. 1774 went into the share of Murlidhar and Khasra No. 1813 went into the share of Mothuram. At the death of Manguram, Murlidhar spent a sum of Rs. 1,50,000/-. Therefore, an agreement was written between Murlidhar and Narsingh Prasad on 2.5.1992 whereby Narsingh Prasad sold his share of the land to Murlidhar for a consideration of Rs. 1,50,000/-, which Murdlidhar had spent on the ceremonies of Manguram. However, subsequently Narsingh Prasad repaid the said amount and cancelled the agreement to sale on 10.2.1993. On 10.2.1993, Murlidhar issued a receipt in favour of Narsingh Prasad and clearly admitted that the sum of Rs. 1,50,000/- had been paid to him and, therefore, the agreement dated 2.5.1992 is being cancelled. Subsequently, Narsingh Prasad sold his share to the present appellant-defendants vide agreement dated 4.11.1999. On the same date, the possession of the land was given to the appellants. After, getting the possession of the land, the mutation was opened in the name of the appellants, as Mutation No. 463, by the orders of the Tehsildar, Srimadhopur on 12.11.1999. However, Murlidhar challenged the above mutation before the court of the Additional District Collector, by way of filing an appeal. However, the same was dismissed by the Additional District Collector vide order dated 18.11.2002 and the mutation was upheld. Murlidhar, therefore, filed a second appeal before the Additional Divisional Commissioner challenging the mutation dated 12.11.1999 and the judgment dated 18.11.2002. But, vide judgment dated 30.10.2003 the Additional Divisional Commissioner dismissed the appeal and upheld the mutation dated 12.11.1999. . Meanwhile, another co-sharer, Mothuram, filed a suit for correction of entries before the court of the Sub-Divisional Magistrate. In the said suit, the appellants were subsequently impleaded as a party. The said suit is still pending. Notwithstanding the fact that Murlidhar had lost before the Additional District Collector and the Additional Divisional Commissioner, he still filed the present suit for specific performance of agreement dated 2.5.1992 and for cancellation of the registered sale-deed dated 4.11.1992 before the court of Additional District Judge, Srimadhopur. Along with the plaint, he submitted an application under Order 39 Rule 1 & 2 CPC and prayed for a temporary injunction. The appellants not only submitted their written statements, but also brought the judgments of the Additional Collector and the Additional Divisional Commissioner where repeatedly the mutation has been upheld. The appellants pleaded that the possession is with them. But, after hearing both the parties, vide order dated 21.10.2005, the learned Judge has restrained the appellants as aforementioned. Hence, this appeal before this court.

(3.) Mr. Anoop Dhand, the learned counsel for the appellant, not only brought the chronology of events to our notice, but also submitted the judgments of the Additional Collector and the Additional Divisional Commissioner. He further argued that since Murlidhar had failed to achieve his purpose before the Court of the Additional Collector and the Additional Divisional Commissioner, he has filed the present suit. He also brought to our notice the receipt dated 10.2.1993 which is available as Annexure-1. According to the learned counsel, after entering into the sale-deed dated 4.11.1999, the appellants are in possession of the property in dispute. Thus, according to the learned counsel, all these documents are sufficient to make out a prime facie case in favour of the appellants. But, nonetheless, despite these documents being produced before the trial court, the learned Judge has still granted temporary injunction in favour of the plaintiffs-respondent.