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SIDDHARTH RAI Appellant
Through: Mr. S.C. Maheshwari, Sr. Adv. with Mr. Jabar Singh, Mr. M.C. Kharbandaa and
Mr. M.P.S. Tomar, Adv.
Through: Ms. Pinky Anand, Sr. Adv. with Ms. Natasha Sahrawat and Mr. Sanjeev Sahay, Adv.
HON'BLE MS. JUSTICE 11\DERMEET KAUR
03.01.2013 The appeal is directed against the impugned order dated 25.03.2010
'4 passed on the application filed by the original plaintiffs under Order XX)UX
Rules 1 & 2 of the CPC as well as on the application filed by the appellant for vacation of the injunction. There was yet another application filed by the appellants/defendants under Order VII Rule 11 of the CPC for rejection of the plaint.
In terms of the impugned order after looking into the controversy at
FAO (OS) No. 366-68/2010 2013:DHC:7998-DB hand, the learned Single Judge has opined that there should be a restraint order against the appellant from alienating/encumbering the properties mentioned in Annexure 'A' to the plaint.
The present case is an unfortunate family dispute between the appellant on one hand and his wife, respondent No. 2 on the other hand and naturally the minor sonlrespondent No. 1 has thus been embroiled in this dispute. Respondent No. 1, the minor son has been sued through respondent
No.2, she is the mother and next friend claiming a share in the properties which are alleged to be 1-IUF properties.
Learned senior counsel for the appellant submits that he is confining his submissions qua the properties which are agricultural land and according to him, the Hindu law of succession would not operate qua this land. They will be governed by the special statutes i.e. the Delhi Land Reforms Act
1954 and the U.P.Zamidari Abolition and Land reforms Act (Amended),
ORDER
1958. In fact his plea is that no such suit would be maintainable and that his prayer for the rejection of plaint under Order VII Rule 11 of the CPC has not effectively been dealt with. The impugned order as well as the record pointed out by the learned senior counsel for the respondent shows that as per the income tax returns filed on behalf of the HUF consisting of the father of the appellant and the appellant, these properties were shown as HIJF properties. The further development which has taken place is that issues have been framed in the suit on 24.01.20 11 where specific issues qua these submissions have been framed and read as under:- "(iv). Whether the jurisdiction of the Civil Court to entertain and adjudicate the present suit for partition in respect of agricultural lands is expressly barred by the provisions of the Delhi Land Reforms Act, 1954 and UP. Zamindari Aboilotion and Land Reforms Act, 1950? (OPD)
(vi) Whether the Bhumidari rights in the agricultural lands governed by the provisions of the Delhi Land Reforms 1954 and Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 is controlled only by the provisions of the said Acts, and excluded from the operation of the law applicable on the joint family property and f so, to what effect? (OPD)
(ix) Whether the alleged declaration made by deceased Kalpnath Rai in the Income Tax Return are contrary to the provisions of the Delhi Land Reforms 1954 and Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and not binding on defendant No. 1 and f so, to what effect? (OPD)." The aforesaid issues in fact form the basis of the submission of the learned senior counsel for the appellant. These issues were not even pressed to be tried as preliminary issues and thus the parties agreed that these issues can be decided only post trial. The onus to prove these issues is also on the appellant/defendant. Not only the aforesaid issues had been framed but even the trial has proceeded and in order to expedite trial, directions were passed by the Division Bench on 19.07.2012. The cross-examination of the witness of the respondents is complete. Learned senior counsel for the respondent states that the said witness is the only witness to depose on behalf of the respondents. Apart from that a formal witness is required to prove the JANUARY 03, 2013 INDERMEET KAUR, J. r income tax returns of Kalpnath Rai HUF as the appellant has chosen not to admit those documents. In fact she has submitted that if those documents are read in evidence, she has no other evidence to lead. We did put it to the learned senior counsel for the appellant whether the appellant would be willing to agree to those income tax returns to be read in evidence without formal proof, in which case the testimony of the '-Ss' v4enL' witnesses of thej e44t could be said to be complete but learned senior counsel for the appellant is not willing for the same and submits that he would like to have a decision on the appeal. We have also noticed that the only controversy raised in the present appeal by learned senior counsel for the appellant today before us arises from the agricultural lands; issues have been cast in this behalf which issues are to be decided post trial and trial is already proceeding. On the conspectus of the matter, we are of the view that the impugned order does not call for any interference. We thus do not think it proper to permit the appellant to alienate or transfer those lands which need to be preserved so that if the respondents succeed in the suit their relief does not become illusory. We thus see no reason to entertain the appeal. Appeal is dismissed. Parties to bear their own costs.
SANJAY KIHAN KAUL, J.