[2025:RJ-JP:3687] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 4502/2024 1. Smt. Pinky W/o Pankaj Prakash Sharma, Aged About 46 Years, Resident Of V.i.p. Colony, Hindaun City, District Karauli. 2. Smt Sharda W/o Kuldeep Sharma, Aged About 43 Years, Resident Of Barpada, Hindaun City, District Karauli. 3. Pankaj Prakash S/o Om Prakash Sharma, Aged About 46 Years, R/o V.i.p. Colony, Hindaun City, District Karauli. ----Appellants Versus 1. Smt. Priyanka W/o Adarsh Kishore, Aged About 44 Years, R/o F-146 Mohan Nagar, Hindaun City, District Karauli. 2. Sub-Registrar, Hindaun, District Karauli. ----Respondents For Appellant(s) : Mr. R.K. Daga with Mr. Rahul Chauhan For Respondent(s) : Mr. Azazul Haq HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 15/01/2025 1. Instant civil misc. appeal is preferred by appellant- defendants aggrieved from order dated 04.10.2024 in TI application No. 04/2023 passed by learned Additional District Judge No.2, Hindaun City, District Karauli. 2. Learned counsel for appellant while relying upon grounds of appeal has submitted that after partition on 31.07.2021, a sale deed was executed and property in question was transferred. He further submitted that after mutation, the land was converted and surrendered in the name of Nagarpalika. He further submitted that afterwards several plots were allotted to third party and no efforts were made to array them as party respondents. He also referred the findings of the Trial Court and reply of present appellants and [2025:RJ-JP:3687] (2 of 5) [CMA-4502/2024] submitted that learned Trial Court has ignored the facts mentioned by present appellants in their reply. He also referred the averment made by plaintiff and submitted that power of attorney is neither cancelled till date of execution of sale deed nor challenged by filing any civil suit. He further submitted that the transfer was in accordance with Section 54 of Transfer of Property Act, therefore, the Trial Court has committed serious error while allowing the TI application and directing status quo of land and also of record. 3. Aforesaid contentions were opposed by learned counsel for respondent-plaintiff and submitted that plaintiff has filed a suit based on fraud and misrepresentation and challenged the act of present appellant committed on the basis of power of attorney dated 02.02.2022. He also submitted that the Trial Court after considering the material on record has ruled in favour of plaintiff and after finding prima facie case, balance convenience and irreparable loss has granted injunction in favour of plaintiff, therefore, there is no scope of interference. 4. Heard learned counsel for the parties. Perused the entire record. 5. Plaintiff respondent has filed a civil suit on 01.04.2023 for cancellation of sale deed dated 20.04.2022 and permanent injunction asserting that the plaintiff is in possession of suit property on date of filing of the suit. Learned Trial Court in application for temporary injunction has passed following orders:- vr% izkFkhZ;k Jherh fiz;adk dh vksj ls izLrqr izkFkZuk i= vLFkkbZ fu"ks/kkKk fo:) vizkFkhZx.k Lohdkj fd;k tkdj vizkFkhZx.k dks tfj, vLFkkbZ fu"ks/kkKk ikcUn fd;k tkrk gS fd os ewy okn ds fuLrkj.k rd fookfnr [2025:RJ-JP:3687] (3 of 5) [CMA-4502/2024] vkjkth;kr dks fdlh vU; dks foØ;] jgu&o; ugha djsa rFkk ekSds o jsdkMZ dh fLFkfr ;Fkkor cuk, j[ksA 6. The Trial Court has also observed in para 8 that as per condition in power of attorney, the possession of plaintiff will continue to be with plaintiff and on basis of this document, the Trial Court has observed that the plaintiff is in possession. Herein this case, the defendants have filed reply and admitted execution of sale deed dated 20.04.2022. Moreover, a statement was also made that the possession of land was already transferred. An FIR No.552/2022 dated 08.10.2022 was also registered at New Mandi, Hindaun City and after investigation, a negative closure report (FR) was filed. Herein, the statement in POA was basis of consideration to decide possession in favour of plaintiff, though it is not necessary for Trial Court to record findings of possession. The Trial Court has not considered other documents on the point of possession. 7. A perusal of record clearly indicate that the land was converted under Section 90-A of Rajasthan Land Revenue Act and surrendered to Municipal Council, Hindaun. A further fact is also on record that several plots in aforementioned land were sold and possession with Patta was given to them. The Trial Court only on basis of statement in power of attorney has found that the plaintiff has a prima facie case. 8. A perusal of facts mentioned in reply and also the documents as available on record clearly indicate that either the Trial Court has overlooked the material on record or deliberately ignored them. A specific lay out plan is also available on record, to show defence raised and pleaded by defendant(s). [2025:RJ-JP:3687] (4 of 5) [CMA-4502/2024] 9. While considering a prima facie case, the Court has to consider whether the property is required to be secured and if the Court is of affirmative view that in what manner. The Court has to passed an effective order against the party so as to make order as an effective way for dispensation of justice to the party which approach the Court. Herein, if a land is transferred in the name of Municipal Council then Municipal Council is a necessary party but no such averment was made by plaintiff and the Trial Court has not considered this aspect. Similarly if the land has been further transferred to others before filing of the suit then the Court has to consider whether they are necessary party or not. Order I Rule 10 CPC empowers the Court to add or strike out any party. 10. Herein this case, looking to the facts as mentioned by the Trial Court, I am of considered view that without considering proper facts, the Trial Court has drawn a conclusion of prima facie case in favour of respondent-plaintiff, therefore, the findings of prima facie case, balance of convenience and irreparable loss are erroneous and perverse recorded by the Trial Court. The Trial Court has not gone into the real controversy and situation on date of filing of suit. 11. Considering the erroneous approach adopted by the Trial Court, I am of considered view that it would be appropriate to set aside the order and remit back the TI application to the Trial Court for fresh consideration on the basis of material placed on record. 12. Having considered the aforesaid, the instant civil misc. appeal is hereby allowed and order dated 04.10.2024 is set aside and the TI application is remitted back (remand) to the Trial Court for decision afresh. [2025:RJ-JP:3687] (5 of 5) [CMA-4502/2024] 13. The Trial Court is expected to expedite disposal of TI application at earliest. 14. With aforesaid, the instant civil misc. appeal and pending application(s), if any, stand disposed of. (ASHOK KUMAR JAIN),J GAURAV /389