MUKESH & Anr. v. KISHAN LAL) DATE OF ORDER & Ors.
Case at a glance
Outcome
Dismissed
Accordingly, the appeal stands dismissed
Provisions considered
- Code of Civil Procedure, 1908 O. 39 rr. 1, 2; ss. 80, 80(2)
- Hindu Succession Act, 1956 s. 8
- Land Acquisition Act, 1894
Judgment
HON'BLE MR. GOVIND MATHUR, J. Mr. Sajjan Singh for the appellants. Mr. Arun Bhansali for the respondents. This appeal is directed against the order dated
19.11.2007 passed by learned Additional District Judge (Fast Track) No.5, Udaipur rejecting an application preferred under Order 39 Rule 1 & 2 Code of Civil Procedure. In brief, facts of the case are that the plaintiff- appellants preferred a suit for cancellation of sale deed relating to the property referred in para 2 of the plaint. As per the plaintiffs-appellants, the property aforesaid was inherited by their father Shri Kishan Lal through his father late Shri Balchand and as such, the plaintiffs being children of Shri Kishan Lal were co-parceners to the property, thus, Shri Kishan Lal was having no authority to sale the same beyond his own share. An application seeking temporary injunction was also filed along with the suit. 2 Learned trial court by the order impugned held that in light of Section 8 of the Hindu Succession Act, no right was available to the plaintiffs-appellants in the property of Shri Balchand.
The trial court while considering the application seeking temporary injunction also taken into consideration the facts that no notice as per Section 80(2) Code of Civil Procedure was given before filing the suit and also that the property in question is subject matter of the acquisition proceedings initiated under Land Acquisition Act, 1894. The contention of learned counsel for the appellants, while assailing validity, propriety and correctness of the order impugned, is that the trial court failed to appreciate that the plaintiffs being grand children of late Shri Balchand were having rights in the property by inheritance and as such, their father Shri Kishan Lal was not having any authority to sale the property beyond his share. Per contra, while defending the order impugned the argument of the learned counsel for the defendants-respondents is that by reasons of Section 8 of the Hindu Succession Act, 1956, the grandson gets excluded and the son alone inherits the property to the exclusion of his son.
To substantiate the contention, reliance is placed by learned counsel for the 3 defendants-respondents upon the judgment of Hon'ble The Supreme Court in the case of Commissioner of Wealth Tax, Kanpur and others vs. Chander Sen and others reported in 1986 (3) SCC-567 and in the case of Yudhishter vs. Ashok Kumar reported in 1987(1) SCC -204. I have considered the arguments advanced and also examined the order impugned. Learned trial court rejected the application seeking temporary injunction on following grounds: (1) As per Section 8 of the Hindu Succession Act, 1956, the grand son stood excluded and it is only the son who inherits the property. (2) No notice as per the provisions of sub-section (2) of Section 80 Code of Civil Procedure was given to the defendants before filing the suit and the property in the question is subject matter of the acquisition proceedings initiated under the Land Acquisition Act,
Operative part
1894. Thus, the plaintiffs in the event of success of suit can claim compensation. 4 The order passed by the trial court is based on sound consideration of law and that by no means that can be termed and treated as an order perverse, capricious or contrary to the settled provisions of law. The interference of the appellate court with the discretion exercised by the trial court in granting temporary injunction or refusing to grant temporary injunction is quite limited. It is only, if the trial court acts arbitrarily, capriciously or, if the order is contrary to the settled prepositions of law that may be interfered by the appellate court. An order passed by the trial court may also be interfered, if it is found that the trial court failed to exercise discretion vested with it and that results into miscarriage of justice. In the instant matter, no such eventuality is seen and, therefore, the order impugned does not suffer from any error that may warrant interference by this Court. Accordingly, the appeal stands dismissed. (GOVIND MATHUR)J. Anil/
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Accordingly, the appeal stands dismissed
Which statutory provisions did this judgment involve?
Code of Civil Procedure, 1908 — O. 39 rr. 1, 2; Hindu Succession Act, 1956 — s. 8; Code of Civil Procedure, 1908 — ss. 80, 80(2); Land Acquisition Act, 1894.
Which court decided this case, and when?
Rajasthan High Court, on 04 Mar 2008. The bench was BLE GOVIND MATHUR.
Precedent status how later indexed judgments have treated this case
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