1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Dharam Chand & others v. Jogeshwar and others. S.B. CIVIL MISC. APPEAL NO. 993 OF 2006 against the order Dated 24.6.2006 passed by the learned District Judge, Jalorein Civil Misc.Case No.48/2006. DATE OF JUDGMENT :: 24th MARCH, 2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr. Pradeep Shah, for the appellants. Mr. Vivek Shrimali, for the respondent No.1. BY THE COURT : The instant appeal has been preferred by the non-applicant-appellants against the order dated 24.6.2006 passed by the learned District Judge, Jalore in Civil Misc. Case No.48 of 2006 whereby the learned Judge has allowed the application filed under O.39 rr. 1 & 2, read with Sec.151 CPC in favour of the plaintiff-applicant-respondent No.1 and against the defendant-non-applicant-appellants. 2. Briefly stated the facts of the case are that the plaintiff-respondent No.1 filed a suit for declaration, injunction and for cancellation of the sale-deed dated 21.4.2006 qua his half share in the concerned land mentioned in the aforesaid sale-deed in the court of learned District Judge Jalore. Along with the said plaint, on the same line, the plaintiff-applicant also filed an application under O.39 rr.1 and 2 read with Sec. 151 CPC for granting temporary injunction against the non-applicant-appellants. Stating therein that the plaintiff-applicant is the adopted son of non-applicant No.1 Dharamchand, therefore, he also became co-sharer of the agriculture land stands in the name of non-applicant No.1 It is stated that Dharamchand is having agriculture land and other property in his name mentioned in the Schedule “A” along with the suit. The applicant being adopted son became co-owner. He further stated that in this way, non-applicant No.1 alone was not having any right to alienate the property. It was stated that non-applicant No.1 is intended to alienate the property. It was also stated that despite knowledge of every things, he has also alienated the agriculture land situated at Ahore in 3. favour of non-applicants No.2 to 8 without taking him in confidence. It was also stated that the applicant is in possession of the land, therefore, prayer of temporary injunction was sought. Notice of the application was issued to the non- applicants. Non-applicant No.1 in his reply stated that he never took the plaintiff in adoption. Neither any adoption deed was prepared nor any where applicant's father's name was changed. Contrary upto 2004, the applicant's father is Lumba Ram stated in the voter list as well as stated in the Ration Card. He denied all the averments made against him. It was stated that whatever properties, he is having including the said agriculture land and residential house are his self-acquired properties and he was competent to sell it off. It was also stated that the agriculture land measuring 4.13 Hectare in Khasras No.917, 918, 919, 920/1353 situated in Village Ahore was standing in his name in khatedari. It was further stated that the said land was purchased by him from Smt.Anop Kunwar on 3.6.65 by registered sale-deed and since then, he was cultivating the 4. land peacefully without any obstruction. It was stated that the said land has been disposed of by him(appellant No.1) to defendant-appellants No.2 to 8 against consideration of Rs. 21 lacs through a registered sale-deed dated 21.4.2006 and they are in possession over that land. Thus, it was stated that the plaintiff-applicant has no legal right over the properties and thus not having any prima facie case to get any such relief. It was also stated that prior to this suit proceedings, the plaintiff-applicant with ulterior motive to grab his properties also filed a similar type of suit No.3/2003 for the same subject matter for declaration of adoption son and injunction in the court of learned District Judge, Jalore. That suit was contested by him and at the fag end of the trial, that suit was withdrawn without taking any permission to file fresh suit by the plaintiff, therefore, the suit was dismissed as withdrawn by the court vide order dated 24.11.2005. It was also stated that as the said suit based on the same relief was withdrawn without any permission, thus he had abandoned his alleged rights. Now the plaintiff is precluded by O.23 r.1 and Sec.11, CPC to file fresh suit, on the same subject-matter for the same relief, 5. therefore, the suit itself was not entertainable. In reply, it was also asserted that having prima facie case, balance of convenience, irreparable loss as pre-requisite for granting such relief are not in existence in favour of the plaintiff. It was prayed that application may be dismissed. The other non-applicants also filed reply on the same line stating therein that they are bona fide purchasers of the said agriculture land for value and their right should not be restrained to use and to deal with the land by way of temporary injunction. The learned lower court, after hearing both the sides, found prima facie case in favour of the applicant and on the basis of assertion of facts by the plaintiff-applicant, granted temporary injunction to maintain status quo with further direction that the property should not be further alienated by the non-applicants till disposal of the suit vide order dated 24.6.2006. Being feeling aggrieved by the said order, the non-applicants have preferred this appeal challenging the validity and propriety of the aforesaid order. Notice of this appeal was given to the respondents, record 6. of the learned lower court was called and arguments were heard. During the course of argument, the learned counsel for the appellants submitted that the learned lower court has totally ignored to consider the material available on record and passed an erroneous temporary injunction order restraining further alienation of the agriculture land and to maintain status quo against the record as well as against the settled principles of law. It was submitted that the total case of the applicant is based on the adoption and that has been specifically denied by the appellant. The respondent also filed earlier suit for the same relief for declaration of the adoption son and injunction and that suit was dismissed as withdrawn. No permission was sought to file the suit before withdrawal, therefore, for the same relief, the second suit was precluded as provided under O.23 r. 1 CPC. Thus he was not having any prima facie case which was most necessary for granting temporary injunction order. The relevant papers with regard to withdrawal of the suit No.3/2003 filed earlier by the 7. plaintiff along with the order dated 24.11.2005 dismissal of the suit were very much on record, therefore, no question arises of having prima facie case in favour of the respondent. In this context, the learned counsel for the appellants placed reliance on the decision rendered by this Court in the case of Hari Ram v. Lichmaniya and others (2003(2) DNJ (Raj.) 1001) and submitted that in that case, it is held by this Court that if the first suit has been withdrawn without leave of the court to file a fresh suit then the second suit for the same subject matter is barred as hit by O.23 r.1 CPC but it was urged that learned lower court has not considered while seeing prima facie case in his favour the matter. It was further contended that the factum of adoption was categorically denied from very beginning. It was urged that even as stated by the plaintiff as an adopted son of the appellant though that is not admitted, the plaintiff has not accrued any right in the property of the appellant during his life time as the properties in question are self acquired properties stand in his name 8. the appellant No.1 in the revenue record. Learned counsel for the appellants also drew my attention towards the legal proposition of law provided under Sec.13 of the Hindu Adoptions and Maintenance Act, 1956 and again stressed on the submissions that by mere adoption, adoptive son does not become the co-sharer of self acquired properties of adoptive father and adoptive father does not deprive to dispose of his property by transfer inter-vivas or by will. It was further submitted that the agriculture land in question was purchased by appellant No.1 in 1965 and he was in exclusively possession of that land and was cultivating the same. The land records also stands in his name. He sold this property to appellants No.2 to 8 against consideration of Rs. 21 lacs and possession has been taken over by them and at present, they are in possession of the land, therefore, the plaintiff-respondent has no prima facie case, balance of convenience in his favour and no irreparable loss is caused to him but the learned lower court has not appreciated the material in right perspective. 9. On behalf of the other appellants, it was also contended that they are purchasers of the land and have paid huge amount of consideration. A registered sale-deed is in their favour and at the time of sale, no litigation was pending. The said agriculture land was self-acquired property and they are bona fide purchasers. They are in possession, therefore, they should not be restrained to use and to deal with their land as per their will. On the basis of the aforesaid submission, it was also urged that there were no grounds for granting temporary injunction and to maintain status quo till disposal of the suit in favour of the plaintiff but the learned lower court without considering the material thoroughly, has granted temporary injunction on the assumption and presumption merely on the ground that otherwise it would create multiplicity in the proceedings but that could not be a ground for issuing temporary injunction. It was urged that the learned lower court has not properly considered his discretion judiciously but passed the order in a casual and arbitrarily manner that is not sustainable. The impugned order dated 24.6.2006 may be set aside and appeal may be accepted. 10. On the other hand, learned counsel for the respondents refuted the contentions placed by the appellants' side and further submitted that the appellant Dharmchand took respondent No.1 as an adoptive son as per Hindu rites and rituals, though, formal deed of adoption was not prepared but this fact is well-established. It was also contended that properties as land in the name of appellant No.1 are purchased out of ancestral fund, thus they are joint properties and in that case, as soon as, respondent No.1 was taken in adoption. The appellant became the 'Karta' of the family and he became a member of co-parcenor properties and he also got right in the properties. Learned counsel for the respondent plaed reliance on the judgment of this Court given in the case of Krishan Lal and others v. Raja Ram and another (1997 DNJ (Raj.) 677)in support of his contention. Thus, it was urged that alienation of property has effected his legal rights and further alienation will create more legal complicacy. For that he has moved to the court and learned court below, after considering all these submissions has rightly granted 11. discretionary relief after considering prima facie case, balance of convenience and irreparable loss in his favour. It was contended that in such circumstances, the discretion exercised by the learned lower court, should not be disturbed and order of the learned lower court may be maintained. The learned counsel for the respondent also placed reliance in this respect on the judgments given in the cases of (1) Smt. Rama Devi and others v. Sanganer Co- operative Housing Society Ltd. (1987 (1)WLN 58), (2) Swarup Kunvarba Baivantsinh Udavat and others v. Pratapsinh Nathusinh Jadeja (2001 AIHC 1485), (3) Gopal Laxmandas Lakhani v. Krishnaben Girdharilal Lalvani (AIR 2002 Guj. 398), (4) Laxmi Khadi Bhandar v. Agricultural Development Branch and another (AIR 1991 Pat 273), (5) Sree Jain Swetambar Terapanthi v. Phundan Singh and others (AIR 1999 SC 2322), (6) E.M.Ahmu v. P.S. Ramalingam (AIR 1993 Ker. 33), (7) Metro Marins and another v. Bonus Watch Co. Pvt. Ltd. and others (2004(2) WLC (SC) 705), (8) Sadhu Ram v. Gram Panchayat Pastana (AIR 1984 P & H 262), (9) Smt. Sarla Devi v. Shailesh (AIR 1996 Bom 98) and (10) Krishan and 12. another v. Kalya and others (1997 WLC (Raj.) UC 397). It was further submitted by the learned counsel for the respondent that the plaintiff has not concealed the facts of filing of the earlier suit but it was submitted that that suit was for declaration simpliciter and that was withdrawn on the assurance given by the appellant to compromise the matter, later on he betrayed but the present suit is on different cause of action with different reliefs. It was urged that the agriculture land was sold after withdrawal of the earlier suit, therefore, the subject matter of suit is different. Thus, the suit is maintainable and the objection raised in this respect by the appellant's side was rejected by the learned court-below by a separate order. On the points of fresh cause of action and maintainability of the second suit, the learned counsel for the respondent placed reliance on the following decisions ;- (1) Mst.Gulkandi and others v. Prahlad and anr. (AIR 1968 Raj. 51), (2) Smt. Nirmala v. Hari Singh (AIR 2001 HP 01), (3) Inacio Martins v. Narayan Hari Naik and others (AIR 1993 SC 1756), 13. (4) Sidramappa v. Rajashetty and others (AIR 1970 SC 1059), (5) V.Abraham Ajith and others v. Inspector of Police (AIR 2004 SC 4286), (6) Vallabh Das v. Dr.Madanlal and others(AIR 1970 SC 987) (7) Mayar (HK) Ltd. and others v. Owners and Parties Vessel MV Fortune Express and others (AIR 2006 SC 1828). It was further submitted by the learned counsel for the respondent that if the order of temporary injunction in respect of status quo is not maintained then the purpose of filing the suit will be frustrated. Learned counsel for the respondent prayed that in these circumstances, the impugned order may be confirmed and the appeal may be dismissed. I have considered the rival submissions made by the learned counsel for the parties and carefully gone through the record of the case and with due regard, perused the authorities cited by both the parties. The main question arises for consideration is that whether the learned court has improperly exercised its discretion in granting 14. temporary injunction order to maintain status quo and that requires any interference ? It is revealed from perusal of the pleadings stated in the suit as well as in the application that case of the plaintiff-applicant is based on adoption. He has stated that in his plaint that in S.Y. 2030 corresponding to year 1973, he was adopted by the appellant Dharamchand but the fact of adoption has specifically denied by him. The applicant has not been prima facie able to establish that he is adopted son of Dharamchand. Contrary, it has been contended by the appellant that neither any social ritual in this respect was conducted nor any adoption deed was written nor anywhere father's name of the applicant was changed. He has further contended that upto 2004 in the voter list as well as ration card, the father's name of the applicant has been shown as Lumba Ram. It is also pertinent to note that the applicant had filed a suit earlier for declaration of an adopted son of Dharamchand and that suit was contested by Dharamchand but later on, that suit was withdrawn by the plaintiff-applicant. Though the 15. plaintiff has stated that on the assurance to make compromise was given by Dharamchand, therefore, the suit was withdrawn but to this extent, it goes against respondent No.1 that he tried to get declaration of adoption from the competent court but he remained failed. Now, he has sought same type of declaration in the suit but that is yet under adjudication. Before such adjudication, on presumption and assumption, it cannot be inferred that he was taken in adoption. During the course of argument, the contention on behalf of respondent No.1 was also raised that the properties stated in the suit are ancestral properties of Dharamchand. It is further contended that the properties stand in the name of Dharamchand were purchased by ancestral funds but these allegations have been denied by the applicant and on the contrary, it has been stated that the property in question i.e. agriculture land situated at Ahore was purchased by the appellant No.1 on 3.6.65 from Smt.Anop Kunwar out of his own funds. The same contention has been raised with regard to the other 16. properties. The applicant has not been able to establish prima facie that the properties mentioned in the suit are ancestral properties or they are purchased by ancestral funds. During the course of argument, the learned counsel for the respondent also stated that by virtue of adoption, he becomes the co-parcenor and in these circumstances, the appellant Dharamchand alone was not authorised to sell the property. The learned counsel for the respondent has also cited the judgment of this Court given in the case of Krishanlal (supra) but in that case adoption deed was registered one and it was clear from the facts of the case that the property came in the hands of Pola Ram by his father. In that back-ground of the case, it was held that after taking son in adoption, father the sole surviving co- parcenor become the Karta of the family and in this way, the adopted son became interested party but that is not the position in the present case, therefore, the decision given in the case of Krishanlal (supra) does not support the contention of respondent No.1. In the present case, the learned lower court has not separately discussed the prima facie case, balance of convenience, and irreparable loss in 17. favour the respondent o but on the basis of over-all facts came to the conclusion that if the temporary injunction order would not be granted that will create multiplicity of the proceedings but in my opinion, in the facts and circumstances of the case, where the applicant has specifically came with the case that the properties involved in the suit are self acquired properties and he has specifically stated that before filing of the suit, the agriculture land has been sold by him to non-applicants No.2 to 8 through registered sale-deed. In that position, observing that multiplicity of litigation would increase cannot be a ground for granting temporary injunction or order granting status quo. In this way, in my opinion, the learned lower court has not properly exercised his discretion vested in him for granting the temporary injunction. Learned counsel for the respondent has cited number of authorities in this respect and on the basis of those authorities, it was contended that once a discretion is exercised by the learned lower court that should not be interfered but in this particular case, the discretion exercised by the learned lower court is not found proper, 18. therefore, that requires interference. The judgments cited by the learned counsel for the respondent in the cases of Smt. Rama Devi (supra) and Swarup Kunwarba Baivantsinh Udavat (supra), the possession over the land was given under agreements to sale to the plaintiff and on that basis, the plaintiff filed a suit for specific performance. In that position, the possession was considered. In case of Gopal Laxmandas Lakhani(supra) and Laxmi Khadi Bhandar (supra) the temporary injunction was refused. In case of Sree Jain Swetambar Terapanthi (supra), the facts were different. In that case, the temporary injunction was granted on the bona fide possession by the learned trial court. That was dismissed by the learned Appellate Court without assigning any reason. In case of Sadhuram (supra), the possession of the plaintiff as tenant was protected. In case of Smt. Sarla Devi (supra) the concerned plot No.18 was allotted to her husband by the Society. After death of her husband, she was in the possession of that plot and on that basis, the possession was protected. In case of Krishan (supra), the possession was given under an unregistered agreement to sale to the concerned plaintiff 19. and on that basis, his possession was protected but these are not the position in the present case. Thus, the contention of the respondent that he is in possession and taking into consideration the possession, discretion of the learned lower court is not sustainable. In the present case, firstly, the appellant has not been able to establish that he is in possession of the agriculture land and secondly, no prima facie proof has been produced in this respect. Contrary, the revenue records stand in the name of the appellant and it has been stated by the appellant that previously he was in exclusive possession and after selling of the property, possession was handed over to applicants No.2 to 7 and they are in actual possession. It was also contended by the appellant that as the plaintiff has filed the earlier suit No.3/2003 for the same subject matter and for the same relief, therefore, the present suit under which the application for granting temporary injunction has been made was not maintainable. He has also placed reliance on the judgment given in the case of Hariram (supra). From the record, it is revealed that the plaintiff has filed the earlier suit with regard to declaration of adoption and 20. injunction. The same type of relief has been sought in the present suit. It was contended by the learned counsel for the respondent that the subject matter of the present suit is different, therefore, the suit was maintainable. He has also cited number of authorities as mentioned above. I have perused those authorities. In those authorities, by and large, it was held that on different cause of action, which was not available earlier, the second suit is held to be maintainable but this aspect of the matter will be dealt with at length by the learned trial court in the suit proceedisngs. At present, it is not necessary to observe anything in this respect as the learned trial court has passed a separate order in this respect and that is not under challenge before me. As discussed above, in my opinion, the plaintiff has not been able to establish strong prima facie case in his favour and in addition to that, he has also to establish balance of convenience and irreparable loss in his favour but he has not been able to establish that what irreparable loss he will suffer in case stay is not granted. Contrary, the appellant 21. No.2 to 8 are bonafide purchasers of the land and registered sale-deed exists in their favour. They have stated that they are in possession, that is verified by the sale- deed. The learned trial court has not properly considered these ingredients before granting temporary injunction and order of status quo. The co-existence of all the three ingredients are necessary for issuing such temporary injunction. The order of the learned trial court is lacking from this aspect. Thus, the order is not sustainable. It is also made clear that further alienation of property will be effected by the theory of lis pendence. For that, no separate order is necessary to pass. On the basis of above discussion, the impugned order passed by the learned trial court is liable to be quashed as there were no grounds for granting temporary injunction or to maintain status quo. In the result, the appeal is allowed. The order under appeal dated 24.6.2006 passed by the learned lower court is quashed and set aside. Looking to the nature of the suit, learned lower court is further directed to proceed with 22. the suit expeditiously, and shall not be influenced by any observation made in this order. No order as to costs. (MANAK MOHTA), J.