Abdul Quddus and Others vs Majeed and Another

Shishir Kumar, J.—This is a Plaintiffs'' second appeal arising out of a suit for injunction against the Defendants.

The Plaintiff-Appellants filed a suit for permanent injunction to restrain the Defendant-Respondents from interfering in possession over the disputed house alleging therein that by virtue of a sale-deed dated 2.2.1990 they have purchased an area of 302 sq. meters of land of Plot No. 279 and thereafter they have raised certain constructions and by Nagar Palika it has been allotted House No. 19/6-A-J. Defendants are trying to interfere in the possession, therefore the present suit is being filed.

On behalf of the Defendants a written statement was filed denying the claim that they have purchased this property from the actual owner on 9.3.1994 and Plaintiffs have got no right in the property in dispute. During pendency of the suit proceedings u/s 145 Code of Criminal Procedure. were taken and the disputed property was attached and the matter is pending before the Court. The trial court dismissed the suit holding therein that Plaintiffs have failed to prove from the document as they have purchased the said property on the basis of registered sale-deed. Further Plaintiffs have filed an appeal. That too has been dismissed. Hence, the present second appeal.

On behalf of the Plaintiffs, P.W. 1 Abdul Quddus, P.W. 2 Ansar and P.W. 3 Raseed Jamal have made statements before the Court. The documentary evidence filed was Dakhil-Khariz, Card 10 Ga, sale-deed dated 2.2.1990 as well as photostat copy of Nakal Khatauni dated 20.3.1989 was filed. Plaintiffs have also filed photo copy of the order passed in Writ Petition No. 37567 of 2001. The Commissioner''s report 98 Ga in Suit No. 35/86 was also filed.

On behalf of the Defendants D.W. 1, D.W. 2 and D.W. 3 have made their statements before the Court. In support of their claim, the Defendants have filed the list 87 Ga, 88 Ga, 89 Ga and 90 Ga, copies of the assessment, family settlement, sale-deed and the order of mutation proceeding as well as copy of the order dated 1.6.2000 passed by the Magistrate Varanasi, copy of the auction as well as sale-deed dated 9.3.1994 and other various documents. The trial Court has framed various issues on the basis of pleadings and the documents submitted. One of the issues was that whether the Plaintiff is the owner in possession of the House No. 19.6-A-J or not?

The Plaintiff-Appellants submit that the Court below has completely erred in law in discarding the revenue entries in respect of the property in dispute in which the vendors of the Plaintiff were recorded as owners. The court below has also not considered that Defendants were owner of the property in dispute on the basis of relying upon a civil court decree in the absence of any material to indicate the identity of the property involved in the suit. The court below has not considered the issue properly in the absence of the pleadings by the Defendants that nature of the property in dispute was an open land and no construction stood thereon. The finding to this effect that Defendants are the owners of the property in dispute in absence of any material and documents, findings recorded by both the courts are liable to be set aside.

On behalf of the Defendants, it was pleaded before the courts below that Plaintiffs by concealing certain facts have got registered house number in the Nagar Nigam and an objection was filed on their behalf and subsequently it was cancelled. This property was auctioned in 2004 and in 2006 one Bhikkhu Sahu has purchased the same and subsequently their sons became the owner. It was given on rent to the Nagar Palika and in the year1941 on the basis of family settlement one Sri Dashmi Prasad, Ram Prasad, Girja Shanker, Ganesh Prasad and others became the joint owner of the said property. In the year 1960 a further family settlement was made and Smt. Shobha Rani became the owner and subsequently it devolved on one Santosh and vide its registered sale-deed dated 9.3.1994, the said property has been purchased by the Defendants. The Appellants deliberately wanted to grab property and there is no construction as alleged on the land in dispute.

The trial Court after considering the issues framed on the basis of relevant document, has recorded a finding that from the document it clearly appears that Nakal Khatauni 1359F in which the Arazi No. 141, 89 decimal is recorded in the name of Hari Sadhan Banerjee and Arazi No. 279, 35 decimal Abadi has been recorded. From the perusal of the various documents submitted on behalf of the parties as well as the Commissioner''s report, it is clear that in Case No. 35 of 1986, Qamaruddin v. Anand Kumar in which House No. 19/7-10-14 towards the east there is an open road and towards north Arazi of Abdul Mati and towards south Arazi of Abdul Kalam is there. There was a dispute to that effect in that suit. From the perusal of the document filed on behalf of the Defendants, it is clear that during the assessment year of 1967-78 there was a house of Dashmi and from their heirs the Defendants have purchased house No. 19/7. From the Dakhalnama of 1906 and from the auction paper, it is clear that there was a house of Bhikkhu and subsequently it devolved on the heirs of Dashami. From the perusal of the Commissioner''s report it has come on record that on the disputed site, no construction is there and it is an open land and from the report of the Commissioner it is clear that a very old wall was there and no Kothari as alleged by the Plaintiffs is in existence. The trial court after recording a finding to this effect that the Plaintiffs have failed to prove from the record that they are in possession of the property in dispute and admittedly this property has been attached in proceedings u/s 145 Code of Criminal Procedure and the Nagar Palika was the tenant in the said accommodation, therefore, it will be presumed that possession is of the Defendants. After considering the judgment of this Court as well as the Apex Court, the trial court has recorded a finding that Plaintiffs are not the owner in possession of the property in dispute and Defendants are the owner of the property in dispute. The Plaintiffs have failed to prove even the identification of the land, therefore, they are not entitled to any relief. The lower Appellate court after considering the findings recorded by the court below has confirmed the finding recorded by the trial court that the Plaintiffs are not entitled to any relief in view of the fact that they are not able to prove their possession in the property in dispute. Therefore, they are not entitled to get any injunction.

After hearing the learned Counsel for the parties and after perusal of the record, I am of opinion that the basic principle for granting an injunction is that a person has to prove his possession in the property in dispute in view of Section 110 of the Evidence Act. From the record it is clear that the Plaintiff-Appellants have failed to prove their possession, therefore, the Court below have rightly dismissed the suit. In my opinion the findings recorded by the courts below are findings of fact and need no interference by this Court.

The appeal is hereby dismissed.

No order is passed as to costs.