1. CMA No.836/09-(Rameshwar Lal & Ors. Vs. Ramkumar & Anr.) & 2. CMA No..837/09- (Rameshwar Lal & Ors. Vs. Girdwari Devi & Anr.) Judgment dt.20.01.10 1/8 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT 1. S.B. CIVIL MISC. APPEAL NO.836/2009 (Rameshwar Lal & Ors. Vs. Ramkumar & Anr.) 2. S.B. CIVIL MISC. APPEAL NO.837/2009 (Rameshwar Lal & Ors. Vs. Girdwari Devi & Anr.) Date of order : 20th January, 2010 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Ramandeep Singh for the appellants. Mr. J.S. Bhaleria ) for the respondents. Mr. Hemant Choudhary ) ------- BY THE COURT:- 1. These appeals have been filed by the plaintiff-appellants being aggrieved of the order dated 9.7.2009 passed by learned ADJ, Sangaria rejecting the application of the plaintiff-appellants for seeking temporary injunction under Order 39 Rule 1 and 2 C.P.C. The plaintiffs claimed in the suit that the sale deeds executed by the deceased Pyare Lal on 25.2.2009 in favour of Ram Kumar, father of respondent No.1 Girdwari Devi and in favour of Girdawari Devi herself were illegal and they were required to be cancelled. 2. In the said suit for cancellation of sale deeds, the 1. CMA No.836/09-(Rameshwar Lal & Ors. Vs. Ramkumar & Anr.) & 2. CMA No..837/09- (Rameshwar Lal & Ors. Vs. Girdwari Devi & Anr.) Judgment dt.20.01.10 2/8 plaintiffs, who are lineal descendants of brothers of deceased Pyare Lal claimed temporary injunction by the aforesaid application under Order 39 Rule 1 and 2 C.P.C. 3. The learned trial court has rejected the said T.I. Application by finding that prima facie no case was made out by the plaintiffs for grant of such T.I. on the ground that the said deceased Pyare Lal had executed a registered adoption deed adopting the said Ram Kumar dated 26.9.2008. The learned trial court has also noticed in para 8 that from the preamble of the sale deed dated 25.2.2009 in question it appears prima facie that sale of agricultural land in favour of the respondent No.1 – Girdwari Devi was valid because her husband Surender Kumar working in PHED Department had sufficient fund available around that day to purchase the property in question. He had taken a loan from PHED Department on 29.2.2009 to the tune of Rs.1,25,000/- and had also received Rs.1,91,000/- on 9.7.2007 and 10.9.2007 respectively on account of sale of one of his plots of land. The said Pyare Lal is stated to have expired on 3.5.2009 after about 3 months of the sale deed in question. The learned trial court also found that the said defendant had produced a ration card No.652 dated 12.8.1993 which showed the said Ram Kumar to be son of the said deceased Pyare Lal. The learned trial court also proceeded on the assumption that the registered adoption 1. CMA No.836/09-(Rameshwar Lal & Ors. Vs. Ramkumar & Anr.) & 2. CMA No..837/09- (Rameshwar Lal & Ors. Vs. Girdwari Devi & Anr.) Judgment dt.20.01.10 3/8 deed dated 24.9.2008 was not under challenge in the said suit and, therefore, the present plaintiffs did not have any locus standi to challenge the registered sale deed dated 25.2.2009 executed by the said Pyare Lal prior to his death in favour of the said Ram Kumar adopted son and Girdawari Devi daughter of Ram Kumar. 4. The said order of the learned trial court is under challenge before this court in the present appeals. 5. Mr. Raman Deep Singh, learned counsel appearing for the plaintiff-appellants submitted that the death of said Pyare Lal was in suspicious circumstances and if Ram Kumar was really the adopted son of the said deceased Pyare Lal, there was no need to execute the registered sale deed in his favour and thus, the sale deeds in question were executed under suspicious circumstances and for cancellation of which the suit in question was filed by the plaintiffs and in the circumstances, the learned trial court ought to have granted temporary injunction in favour of the plaintiff-appellants. He submitted that adoption deed was not under challenge which according to him was not required to be challenged in the suit filed for cancellation of sale deed. The said adoption was void as the so called adopted son Ram Kumar was a married person having daughter Girdwari Devi, the present respondent No.1 and, therefore, as per Section 10(iii) of the 1. CMA No.836/09-(Rameshwar Lal & Ors. Vs. Ramkumar & Anr.) & 2. CMA No..837/09- (Rameshwar Lal & Ors. Vs. Girdwari Devi & Anr.) Judgment dt.20.01.10 4/8 Hindu Adoption and Maintenance Act, 1953 such adoption was void ab initio. He, therefore, submitted that the present appeal deserves to be allowed and the temporary injunction for maintaining the status quo of the suit property in question as on the date of filing of the suit itself deserves to be maintained and restored since the said position has been subsequently altered by the respondent's father by further alienation of the property despite the matter being pending in this Court for which cognizance under Contempt law was taken by this Court. 6. On the other hand, Mr. J.S. Bhaleria, learned counsel appearing for the respondent-defendant submitted that the impugned order of the learned trial court dated 9.7.2009 is perfectly justified as the sale in question cannot be said to be suspicious at all. The registered sale deed was executed by the deceased Pyare Lal on 25.2.2009 much prior to his death on 3.5.2009 and there is no evidence on record to show that the said Pyare Lal was so seriously ill so that he could not execute the said sale deed in question out of his own free will and volition. He submitted that the sale in question could be made by a registered sale deed even though on of such purchasers, Ram Kumar was adopted son of the deceased Pyare Lal under a registered adoption deed. He vehemently submitted that without laying any challenge to the adoption deed in favour of Ram 1. CMA No.836/09-(Rameshwar Lal & Ors. Vs. Ramkumar & Anr.) & 2. CMA No..837/09- (Rameshwar Lal & Ors. Vs. Girdwari Devi & Anr.) Judgment dt.20.01.10 5/8 Kumar, the present plaintiffs cannot claim any right over the land in question belonging to said Pyare Lal as his right to sell his own property i.e. agricultural land cannot be doubted and has not been doubted by the parties at all. He further submitted that the said Ram Kumar being a close relative of the deceased Pyare Lal being his brother-in-law was living with him since his childhood and, therefore, the said Pyare Lal executed the said sale deed in favour of Ram Kumar that too by the registered sale deed of agricultural land in question on 25.2.2009 on receiving consideration for such transfer of property and therefore such registered sale deed also could not be doubted. He also justified further alienation of the suit property in favour of the third party for further registered sale deed. He, therefore, prayed for dismissal of the present appeals against the impugned order dated 9.7.2009. 7. I have heard learned counsels at some length and perused the impugned order of the trial court and given my thoughtful consideration to the submissions made at the Bar and also the judgment cited by the learned counsel for the respondents in the case of Dheer Singh Vs. Amar Singh & Ors., - RLR 1997(2) page 744 in which this Court held that registered adoption deed gives right of presumption of adoption deed being genuine and bonafide. 1. CMA No.836/09-(Rameshwar Lal & Ors. Vs. Ramkumar & Anr.) & 2. CMA No..837/09- (Rameshwar Lal & Ors. Vs. Girdwari Devi & Anr.) Judgment dt.20.01.10 6/8 8. This Court is of the opinion that for the purpose of considering the application for temporary injunction, the learned trial court was required to give only tentative findings on the basis of evidence before it and come to the conclusion as to whether prima face case for grant of temporary injunction was made out by the plaintiffs or not. The other aspects relating to irreparable injury to the plaintiffs and balance of convenience also have to be addressed by the court below. 9. The learned trial court in the present case has arrived at the conclusion tentatively that the purchaser under the impugned sale deed was the close relative and adopted son of the seller, the deceased Pyare Lal prior to his death and his right to sell his property is not in dispute. 10. The learned trial court has also found that the purchaser had sufficient funds to purchase the said agricultural land in question and also found that the adoption prima facie appears to be genuine not only because the same was under registered adoption deed but also that said Ram Kumar was living with the said Pyare Lal since his childhood and, therefore, circumstances like his name and ration card of 1993 as son etc. indicated that the adoption was valid and proper. Admittedly no challenge to the said adoption has been led by the 1. CMA No.836/09-(Rameshwar Lal & Ors. Vs. Ramkumar & Anr.) & 2. CMA No..837/09- (Rameshwar Lal & Ors. Vs. Girdwari Devi & Anr.) Judgment dt.20.01.10 7/8 present plaintiffs before the learned trial court. 11. The contention of the learned counsel for the plaintiff- appellants Mr. Ramandeep Singh that the death of said deceased Pyare Lal was also in suspicious circumstances and some criminal proceedings are pending in the matter is of no concern to this Court presently, as no evidence in this regard is before this Court. The said Pyare Lal admittedly died intestate and without any issue on 3.5.2009 and the present plaintiffs appear to be lineal descendants of his brothers, whereas on the other hand the defendants are claiming through a registered adoption deed and registered sale deed dated 25.2.2009. 12. In the facts and circumstances of the case, if the learned trial court has come to the conclusion that the plaintiffs prima facie did not have a prima facie case in their favour for grant of temporary injunction restraining the defendants from further alienating the property or to direct the status quo of the suit property to be maintained, this Court does not find any ground to interfere with the said finding and the conclusions of the learned trial court in the present misc. appeals. The suit is admittedly pending before the learned trial court and the validity of the sale deed in question will be determined on the basis of further evidence which is led and proved 1. CMA No.836/09-(Rameshwar Lal & Ors. Vs. Ramkumar & Anr.) & 2. CMA No..837/09- (Rameshwar Lal & Ors. Vs. Girdwari Devi & Anr.) Judgment dt.20.01.10 8/8 before the learned trial court and the trial of the suit. However, during the pendency of the said suit, if the temporary injunction is not granted, it cannot be faulted in the facts and circumstances of the present case because even if the plaintiffs ultimately succeeds, the subsequent sales if any made during the pendency of the said suit would be covered by and dealt with in accordance with Section 52 of the Transfer of Property Act containing the principles of lis pendense. 13. Consequently, these appeals of the plaintiffs is found to be devoid of merit. The same are accordingly dismissed. No costs. [ DR. VINEET KOTHARI ], J. item No.18-19 babulal/