SMT. SAYAR KANWAR D/O LATE SHRI KISHORE SINGH JI, W/O LATE SHRI BHANWAR SINGH JI Vs. LATE ACHALARAM JI S/O TEJARAM JI THROUGH HIS LEGAL HEIRS

JUDGEMENT

(1.) Appellant-plaintiffs have laid this appeal under Order 43, Rule 1(r) read with section 104 CPC to challenge order dated 23rd of September 2017, passed by Addl. District Judge, Jodhpur District, Jodhpur (for short, 'learned trial Court'). By the order impugned, learned trial Court has rejected the application of appellant-plaintiffs under Order 39, Rule 1 and 2 read with section 151 CPC for temporary injunction in a suit for cancellation of sale-deeds and perpetual injunction.

(2.) It is, inter-alia, averred in the plaint that the agricultural land situated at Village Gumanpura, Tehsil Shergarh, District Jodhpur in Khasra No.1009 measuring 83 bigha 3 biswa, and Khasra No.1008 measuring 4 biswa, was given to Shri Laxman Singh alias Lichman Singh for cultivation and after death of Laxman Singh, Kishore Singh and Sujan Singh, the real brothers, started cultivating the land. In the plaint, it is also averred by the appellants that their father Kishore Singh died in Samvat 2008 but their mother was alive, however, as per the Rajasthan Tenancy Act, she being lady, her name was not entered in the revenue record, and therefore, at the time of settlement, the entire agricultural land was recorded in the name of Sujan Singh. The plaint further unfurls that uptil her death, appellant-plaintiffs' mother was jointly cultivating the land with Sujan Singh as she had half share in the land. A specific averment is made in the plaint that after death of their mother, appellant-plaintiffs filed a revenue suit before Sub Divisional Officer, Shergarh and also applied for temporary injunction wherein the learned revenue court granted status-quo order. A fact is also pleaded in the plaint that it has come to the knowledge of the appellant-plaintiffs that respondents No.1 to 3 have sold 7/24th share of the agricultural land to respondent No.4, and respondent No.5 to 8 have sold 7/16th share of the land to respondent No.9 Uda Ram, by executing sale-deeds dated 23rd October 2008 and 10th of July 2010 respectively. Asserting in the plaint that the sale-deeds are void insofar as their rights are concerned, appellant-plaintiffs craved for cancellation of both these sale-deeds and for perpetual injunction. Along with the suit, an application under Order 39, Rule 1 and 2 read with section 151 CPC is also filed with identical pleadings for seeking restraint order against the respondents not to interfere with their possession and cultivation of land and furthermore not to alienate the disputed agricultural land.

(3.) The application for temporary injunction is contested by respondent No.1 and 2 denying all the averments made therein. It is specifically pleaded in the return that land was exclusively cultivated by Sujan Singh and Kishore Singh was not his brother. It is also averred in the return that Sujan Singh's father Laxman Singh was never allotted any agricultural land for cultivation by the then Jagirdar of Dechu and as a matter of fact in Samvat 2006 corresponding to year 1949, the Marwar Tenancy Act and the Marwar Revenue Act were in force, which provided for issuance of Parcha in the name of cultivator. The reply further states that in the event of death of tenant, if he is not survived by any male legal heir, then his widow and minor daughters are entitled for tenancy rights. While specifically pleading in the reply that the appellants have no right over the land in question their positive assertion about the land being cultivated by their mother is absolutely false and misleading. In the reply, this averment is also specifically denied that after death of Laxman Singh, Kishore Singh and Sujan Singh remained in join possession of the disputed agricultural land. It is also averred in the reply that Sujan Singh transferred the land during his lifetime in the year 1959 and subsequently the land was transferred to other incumbents from time to time. As regards, revenue suit pending before Sub Divisional Officer, Shergarh, it is specifically averred in the return that respondents never received any notice from revenue court. Making a positive assertion in the reply that initially the land was transferred by Sujan Singh in the year 1959, it is submitted by the respondents in the reply that the appellant-plaintiffs have filed the suit without any foundation after 55 years and as the suit itself is misconceived no temporary injunction can be granted. In the specific objection, a fact is mentioned by the respondents that the land was partitioned by a competent court among the khatedars and then in the year 1959 Sujan Singh sold land to Mangla Ram, Takhta Ram, Panna Ram and Achla Ram S/o Teja Ram Nai and subsequently Panna Ram sold his share of land to his brother Takhta Ram in 1989, by a registered sale-deed, and accordingly their names were entered in the revenue records. Respondents also contended in the reply that appellant-plaintiffs were neither in possession of the land, nor they are cultivating the same. Appellant-plaintiffs in support of their application for temporary injunction, submitted three affidavits besides their own affidavits and e.converso five affidavits were submitted on behalf of respondents.