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Smt. Nirmala Kanta Vs. Mulk Raj Kohli and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. Nos. 1386 and 1497 of 1976
Judge
Reported inAIR1977All145
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 1
AppellantSmt. Nirmala Kanta
RespondentMulk Raj Kohli and anr.
Appellant AdvocateV.K. Burman, Adv.
Respondent AdvocateK.C. Saxena, ;B.P. Srivastava and ;Pandit Laxmi Narain Pande, Advs.
DispositionRevision dismissed
Excerpt:
.....principles the question which are not canvassed before a court of law will not be gone into by them. 3. i should like to make it very clear that the trial court in deciding the suit itself will not allow its mind to be affected in any manner by the observations which are made in the interlocutory proceedings. it should be clearly understood that at the final stage the suit is to be decided on the evidence which is led by the parties and any observations made during the proceedings in respect of the prayer for a temporary injunction whether made in the courts below or by this court have no relevance whatsoever in passing the final verdict after the trial of the suit. 4. in the result, both the revisions fail and are dismissed but in the circumstances the parties shall bear their..........the defendants seeking to restrain them from interfering with the plaintiff's possession over the suit property. an application for a temporary injunction was made by the plaintiff seeking to restrain the defendants from interfering with the plaintiff's possession over the property and from realising rent thereof. the defendant no. 1, on the other hand, moved an application seeking a temporary injunction against the plaintiff restraining the latter from realising the rent from the tenants of the disputed property. both the applications were disposed of by a common order passed by the trial court. the application of the defendant no. 1 for a temporary injunction was rejected and that of the plaintiff for such an order was allowed. the defendant no. 1, smt. nirmala kanta, went up in two.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. These are two connected revisions and they have arisen from one suit. A few facts may be noticed. The plaintiff claimed to be the owner of the property in suit. His assertion is that he purchased the property in the name of his wife, Smt Shanti Devi, defendant No. 2. After the purchase, certain alterations took place in the property and they were also financed by the plaintiff from his own money. Throughout the plaintiff remained in possession of the , property and realised rent from the, tenants who occupied certain portions of the property. Defendant No. 1 is the wife of his younger son, Bansi Lal. A gift deed was obtained fictitiously by the defendant No. 1 in her favour from the defendant No. 2 on 27th December, 1969. The plaintiff was not aware of the said gift deed till some time in 1975. The defendant No. 1 gave a notice through her counsel to the tenants asking them to pay rent to her. On these allegations the plaintiff claimed a declaration that the gift deed by the defendant No. 2 in favour of the defendant No. 1 in respect of the property in suit was illegal and void and that it was not binding on him. A permanent injunction was also claimed against the defendants seeking to restrain them from interfering with the plaintiff's possession over the suit property. An application for a temporary injunction was made by the plaintiff seeking to restrain the defendants from interfering with the plaintiff's possession over the property and from realising rent thereof. The defendant No. 1, on the other hand, moved an application seeking a temporary injunction against the plaintiff restraining the latter from realising the rent from the tenants of the disputed property. Both the applications were disposed of by a common order passed by the trial court. The application of the defendant No. 1 for a temporary injunction was rejected and that of the plaintiff for such an order was allowed. The defendant No. 1, Smt. Nirmala Kanta, went up in two appeals to the lower appellate court against the said grant of temporary injunction by the trial court in favour of the plaintiff and against the refusal to grant such injunction in favour of the defendant and against the plaintiff, but she did not succeed before the appellate court also and both the appeals were dismissed and the trial court's order granting temporary injunction in favour of the plaintiff and refusing to grant such an injunction against the plaintiff was affirmed. Civil Revision No. 1386 of 1976 has been filed by Smt. Nirmala Kanta, defendant No. 1, against the lower appellate court's order confirming the trial court's grant of temporary injunction. Civil Revision No. 1497 of 1976 has been filed by the said defendant against the lower appellate court's order confirming the trial court's order refusing to grant a temporary injunction in favour of the defendant No. 1 and against the plaintiff.

2. I have heard the learned counsel for the applicant in support of the revision. Counsel's main contentions are two-fold. Reliance has been placed on Gangadara Ayyar v. Subramania, and Kanakarathanammal v. Loganatha : [1964]6SCR1 for the proposition that the burden to prove benami is on the party who asserts a transaction to be a benami one. Therefore, in the present case the burden was on the plaintiff to prove that the property allegedly purchased in the name of the wife had really been purchased by the plaintiff and the transaction was a benami one. This proposition is undoubtedly correct but it does not lead to the inference that in interlocutory proceedings before the trial of the suit it is not open to the court to reach a prima facie conclusion that on the facts placed before it at that stage the plaintiff's contention is prima facie established. Obviously, no final verdict can be given at that stage and that can be done only after the parties have gone to trial and have placed their full evidence in the possession of the court. But that is not to say that at the stage of an application for a temporary order, the court is precluded from drawing certain inferences with a view to decide whether interim order should or should not be passed. The second contention is that there was no prima facie case in favour of the plaintiff because the suit was barred by limitation and in this connection a reference has been made to Article 58 of the new Limitation Act. I should not like to say anything on the merit of the said contention because that would be a matter to be decided by the trial court at the final hearing. The plaintiff has alleged that he was not aware of the impugned gift deed till 1975. Of course, it will be open to the defendant-applicant to show that the said allegation is 'not correct and that the plaintiff was really aware of the document much earlier than 1975. These are questions of fact and evidence and they will be decided by the court after the parties go to trial. But at this stage it cannot be said that the suit even on the plaint allegations should be deemed to have been barred by limitation. It may or may not be barred by limitation after the matter is decided at the final stage. Moreover, it is not clear from the orders of the courts below' that this aspect of the matter was really placed before the courts and, therefore, on the well-known principles the question which are not canvassed before a court of law will not be gone into by them. I do not think, therefore, it can be said that there is any question of jurisdiction involved in these two revisions.

3. I should like to make it very clear that the trial court in deciding the suit itself will not allow its mind to be affected in any manner by the observations which are made in the interlocutory proceedings. It should be clearly understood that at the final stage the suit is to be decided on the evidence which is led by the parties and any observations made during the proceedings in respect of the prayer for a temporary injunction whether made in the courts below or by this Court have no relevance whatsoever in passing the final verdict after the trial of the suit. The trial court will bear this aspect in mind when deciding the suit. Having considered the nature of the controversy between the parties and also taking into consideration the fact that they are near relations of each other I think it is in the interest of all of them that the litigation should be decided very expeditiously. That will be to the benefit of all of them and learned counsel for both the sides have suggested that in the interest of the parties themselves the trial court should be directed to decide the suit with the utmost expedition and despatch. I accordingly direct the trial court to dispose of the suit without any delay and at the earliest possible opportunity.

4. In the result, both the revisions fail and are dismissed but in the circumstances the parties shall bear their own costs. The record shall be sent down by the office immediately and without any further delay.


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