The Allahabad High Court while dismissing the petition observed that a person whose name mutation as the tenure holder of a land has been stayed, cannot execute a sale deed for the said land.
A Single Bench of Justice Rajnish Kumar passed this order while hearing a petition filed by Neelam Shukla and 3 Others.
The petition has been filed challenging the order dated 01.09.2023 passed in Civil Appeal; Balika Shukla and Others Vs Neelam Shukla and Others, by the Additional District Judge, Lakhimpur Kheri, by means of which the appeal has been allowed and the order dated 07.02.2020 passed by the trial court in Regular Suit has been set aside and the parties have been directed to maintain status quo in regard to the land in dispute.
Counsel for the petitioner submitted that the husband of the petitioner Naveen Shukla was the recorded tenure holder of the land in dispute and in possession of the house in question. After his death the petitioner came into possession.
The respondents filed Regular Suit for permanent injunction on the ground that the petitioner no 1 has remarried with one Anshu, therefore she has lost her rights in the property of her husband Shri Naveen Shukla and the respondents, being sisters of Naveen Shukla, are entitled for the property in question, whereas the petitioner no1 has not remarried.
The petitioner filed a written statement and reply in suit denying the remarriage of the petitioner and considering the same the application for interim injunction was rightly and in accordance with law rejected by the trial court by means of the order dated 07.02.2020.
He further submitted that the respondents filed a Civil Appeal against the said order. The petitioner filed an objection against the appeal. But without considering the same, the appeal has been allowed and the interim injunction has been granted by the appellate court, therefore the impugned order is not sustainable in the eyes of law.
On the basis of above, counsel for the petitioners submits that the impugned order is liable to be set aside and this petition is liable to be allowed.
The Court observed that,
As borne out from the pleadings, the recorded tenure holder of the land in dispute was the father of the respondents and husband of the petitioner no 1 Naveen Shukla, Vidya Ram son of Devta Deen, who died on 28.10.2017. Thereafter the husband of the petitioner no1 and the brother of the respondents died in an accident on 24.02.2018.
Thereafter, the name of the petitioner no1 was recorded, being widow of late Naveen Shukla on 09.03.2018.
It appears that thereafter the petitioner no1 remarried to one Anshu son of Babu Ram. The Regular Suit for permanent injunction has been filed by the respondents. The specific plea has been taken by the respondents on the basis of Paper filed before the trial court that the petitioner no1 has remarried to Anshu, therefore she has lost her right in the land in dispute and entry dated 09.03.2018 has been stayed by the Tehsildar- Dharaura on 18.07.2018. Though remarriage has been denied by the petitioner no1 in the objection but no specific denial has been made. The petitioner no1 claims that Anshu is the relative of the petitioner but the relation has not been disclosed. The trial court rejected the application for interim injunction by means of the order dated 07.02.2020 on the ground that the respondents i.e. the plaintiffs in the suit have failed to make out a prima facie case, therefore the balance of convenience is not in their favour and there can not be any irreparable loss to them.
In the objection filed before the trial court, the petitioner no.1, though has denied the remarriage but it has not specifically been denied and even after stating that Anshu is her relative, the relation has not been disclosed.
However in the objection filed before the appellate court this plea has also not been taken and only a plea has been taken that false and forged charge has been levelled after removing the name of the husband of the petitioner Naveen Shukla and mentioning the name of Anshu.
The fact of execution of sale deed dated 30.07.2019, in spite of the stay of the order dated 18.07.2018 by the Tehsildar- Dharaura, has also not been denied by the petitioner, therefore, it is apparent that the petitioner no1 has executed the sale deed in favour of the petitioner nos 2 to 4 despite the stay in her favour, whereas she could not have done so, therefore the Court is of the view that the appellate court has not committed any illegality or error in passing the impugned order dated 01.09.2023, allowing the appeal and granting the interim injunction which is necessary in the facts and circumstances of the case to save the property in dispute and avoid multiplicity of litigation in future, on the basis of the pleadings and material on record.
The Court further observed that,
So far as the argument advanced by the counsel for the petitioners that if two views are possible, the appellate court can not set aside the order passed by the trial court and take different view, the Court is of the view that after the stay in favour of the petitioner no1, the fact which has been considered by the trial court in its order dated 07.02.2020 but no finding has been recorded in this regard, no other view is possible except that the petitioner no1 could not have proceeded even to execute the sale deed of the property in dispute or it’s any part because is not operative on account of stay, even thereafter, the petitioner no1 has executed the sale deed in clear violation of the interim order passed by the Tehsildar.
In view of above, the stay in favour of the petitioner no1, would not be operative from the date of grant of stay order. Thus, the petitioner no1 could not have transferred the part of the land in dispute on the basis of the stay because the rights accrued to the petitioner no1 on the basis of the said entry stands suspended but the petitioner no 1 has executed the sale deed in favour of the petitioner nos 2 to 4, therefore there is apprehension that the petitioner no 1 may further create third party rights on the land in dispute, therefore the said property is required to be protected to avoid the multiplicity of the litigation also in future.
The respondents have also challenged the sale deed executed by the petitioner no 1 in favour of the petitioner nos 2 to 4 by way of an amendment in the pending civil suit. The Court is of the view that the interim injunction has rightly and in accordance with law has been granted by the appellate court by means of the order dated 01.09.2023.
“In view of above and considering the over all facts and circumstances of the case, the Court is of the view that the order dated 01.09.2023 has rightly and in accordance with law has been passed by the appellate court considering the prima facie case, balance of convenience and irreparable loss, which may be caused to the respondents in case the injunction is not granted and there is no illegality or error in it, which may call for any interference by the Court. The petition is misconceived and lacks merit”, the Court also observed while dismissing the petition.