Meera Chauhan vs Harsh Bishnoi & Anr

Bungalow No.12 at Thimayya Road, Cantonment Lucknow (hereinafter referred to as the "Suit property") originally belonged to Smt. Vimla Bishnoi since deceased who was the mother of the Respondent Nos.1 and 2. By a registered Will executed by her, the suit property was bequeathed in favour of Anil Bishnoi, who is the respondent No.2 in this appeal. On 15th of May 1996 Smt. Vimla Bishnoi expired. On 11th of June 1996 Harsh Bishnoi, who is the respondent No.1 in this appeal, applied for mutation before the Army Authorities, which was rejected by them by an order dated 5th January 1998.

A suit has been filed, being Suit No. 199/2002, in the Court of Civil Judge (Sr. Div.) Lucknow by the respondent No.1 for declaration of title over the suit property against the respondent No.2 on the basis of an oral family settlement of the year 1988. In the plaint, the Respondent No.1 herein, has prayed for permanent injunction restraining the Respondent No.2 from interfering with his possession over the suit property. In the suit, an application for injunction restraining the respondent No.2 from transferring, alienating or encumbering the same has been filed. On 6th May 2002 on the application for injunction, an ex-parte interim order of injunction restraining the respondent No.2 from transferring, alienating or encumbering the suit property was passed. It is therefore clear that no interim order of injunction was granted by the Court against the respondent No.2 from interfering with possession of the respondent No.1 in respect of the suit property. According to the respondent No.2 neither the application for injunction nor the ex-parte interim order of injunction was served upon him. When the interim order of injunction was in force, more precisely on 17th of July 2002, the appellant purchased the suit property from the respondent No.2 at a consideration of Rs.19 lacs and she was put into possession of the same on the same date. Thereafter, a Writ Petition being W.P. No. 4994/2002 was filed by the respondent No.1 in the High Court of Allahabad, (Bench at Lucknow) on 18th August 2002 against the State and the Army Authorities as well as the appellant claiming thereby forcible dispossession during his absence and praying for restoration of possession.

Subsequent to the filing of the writ petition the respondent No.1 on 20th August 2002 filed a suit being Suit No.402/2002 under Section 6 of the Specific Relief Act (in short "the Act") before the Civil Judge, Lucknow for restoration of possession. An application for restoration of possession was filed by him against the respondent No.2 under Section 151 of the Code of Civil Procedure, inter alia, on the allegations that he was dispossessed from the suit property during the pendency of the suit and interim order of injunction was in force. However, the application under Section 151 filed in the suit was rejected on the ground that the suit under the Act had already been filed and was pending. More than a year thereafter, more precisely on 22nd September 2004, an application was made at the instance of the respondent No.1 for withdrawing the suit on the ground that the Writ Petition for possession was pending in the High Court. The Civil Judge, Lucknow by an order dated 22nd September 2004 allowed the Respondent No.1 to withdraw the Suit. After the application for withdrawal of the Suit was allowed, the appellant made an application for impleadment in the Suit No.199/2002, which was allowed after hearing the parties. While considering the application for impleadment, the trial court made the following observation on the question of service of notice of injunction order as well as the application for injunction which is reproduced below:

(Underlining is ours) As noted herein earlier, the application under Section 151 was rejected by the trial court. Feeling aggrieved by the said order the respondent No.1 moved a revisional application being C.R. No. 212/2002 before the High Court which was allowed and the order rejecting the same was set aside. The High Court directed the trial court to decide the matter on merits after hearing the parties. In the application under Section 151 of the Code of Civil Procedure the respondent No.1 alleged his dispossession from the suit property although he was claiming to be in possession on the basis of the oral family settlement of the year 1988 at the time of filing the suit and, therefore, prayed for restoration of possession. After the remand, the application under Section 151 was heard in presence of the appellant and the respondent Nos. 1 and 2 and the trial court by an order dated 28th July 2005 allowed the said application directing the respondent No.2 and the appellant to restore possession of the suit property, inter-alia, on the ground that dispossession of the respondent No.1 from the suit property during the pendency of the suit and the operation of the order of injunction was not in due course of law.

At the risk of repetition, looking to the prayers made in the plaint as well as in the application for injunction, we do not find that the prayer for injunction restraining the respondent No.2 from interfering with the possession of the respondent No.1 over the suit property was granted. Respondent No.1 simply prayed for an order of injunction restraining the respondent No.2 from transferring, alienating or encumbering the suit property till the disposal of the application for injunction.

That being the position, we set aside the order of the High Court and the trial court and direct the trial court to decide the application for restoration afresh after permitting the parties to adduce oral and further documentary evidence and thereafter come to a conclusion of fact as to who was in actual possession of the suit property at the relevant point of time.

The trial court is directed to dispose of the application under Section 151 of the Code of Civil Procedure afresh within a period of three months from the date of this judgment. If application for injunction is still pending for adjudication, the same may also be decided at an early date preferably within a period of three months from the date of passing of final order on the application under Section 151 of the Code of Civil Procedure.

Accordingly, the appeal is allowed to the extent indicated above. There will be no order as to costs.