Awadh Prasad Patel vs Ramchere Patel

N.K. Gupta, J.—Heard on admission.

The appellants have preferred the present appeal against the judgment and decree dated 26.8.2004 passed by the Additional District Judge, Amarpatan in Civil Appeal No.212-A/04, whereby the judgment and decree dated 7.8.2000 passed by the 2nd Civil Judge Class-I, Satna in Civil Suit No.20-A/1990 was reversed and suit filed by the respondent nos.1 to 3 was partly decreed. The appellate Court has granted a perpetual injunction in favour of the respondent nos.1 to 3 that the appellants should not be made any disturbance in their possession in land bearing survey no.912 area 0.71 acres situated at village Khajuri, Tahsil Amarpatan, District Satna and also it was directed that the document Ex.P/5 shall be the part of decree, whereas the trial Court has dismissed the suit filed by the respondent nos.1 to 3.

Facts of the case in short are that one Jhurha Patel filed a civil suit before the trial Court that land bearing survey no.912 area 0.71 acres was recorded in the name of Jhurha and Deman Patel. A partition took place between them and the northern half portion of the land remained with Jhurha, whereas southern portion was left with his brother Deman. They got Patta of the land survey no.912 vide order dated 30.7.1954 and thereafter, they became Bhumi Swami. The respondents had tried to take the possession of the property forcefully and therefore, the plaintiff has filed a suit for injunction that no interruption be made in his land. During the pendency of the suit, Jhurha has expired and therefore, the respondent nos.1, 2 and 3 have prosecuted the suit as legal representatives of the deceased/plaintiff.

The defendants Vishwanath and Katahur in their reply denied the allegations of plaintiff and they had pleaded that Deman Patel was necessary party. The defendants have purchased the suit land in sum of Rs.300/- in the year 1958 and thereafter, they were in the possession of the property. Hence, the suit for injunction could not be decreed in favour of the plaintiff. During pendency of the suit, Vishwanath had expired and therefore, the appellant nos.1 to 5 were brought as legal representatives of the defendant Vishwanath.

The trial Court after framing of the issues recorded the evidence of the parties and ultimately, dismissed the suit. In the first appeal filed by the respondent nos.1 to 3, the appellate Court granted injunction to half of the portion of the suit property which was of Jhurha Patel.

After considering the submissions made by learned counsel for the appellants, it is admitted that initially, the property was in the name of Jhurha and Deman. The portion occupied by Deman is not under dispute and therefore, Deman was not the necessary party in the case. The matter relates to half of the property, which was recorded in the name of Jhurha and Deman. After perusal of the various documents filed by the plaintiff, it appears that a partition took place between Jhurha and Deman and therefore, Jhurha remained in possession of the northern half of the property. The appellants have claimed their right by alleged sale deed Ex.D/1 but it is simply a letter written in favour of Bhola S/o Ramadhin Kurmi and it is alleged that the thumb impression of Jhurha was appended on that document and price of the land was to be Rs.300/- therefore, sale deed was required to be registered. Since the document Ex.D/1 has not been registered then, no sale took place by execution of that document. If the deceased/plaintiff Jhurha was interested to sell the property to Bhola then, the possession of the property must have been handed over to Bhola the purchaser but if the entire revenue records are perused then, it appears that the possession of the property was shown in the name of Jhurha. If Bhola would have obtained the possession of the property then, he could have registered the possession of the property in his name in the revenue records since 1958. According to the sale deed Ex.D/1, it was executed in Samwat 2015 i.e. in the year 1958 and therefore, since the possession of the property remained with the deceased/plaintiff Jhurha then, the possibility cannot be ruled out that the document Ex.D/1 was nothing but a letter of security for the loan of Rs.300/- given by Bhola to the plaintiff Jhurha.

However, the appellants could not prove that the suit property was ever sold to Bhola or they were in the possession of the suit property therefore, when it is admitted that the deceased/plaintiff Jhurha was Bhumi Swami of the suit property and when the appellants have tried to take the possession of the property, they should have been prohibited to do so because they did not get any right to take the possession of the property. If they had any title on the property then, they should have initiated the legal proceedings to get the possession of the property. Under such circumstances, the decree of injunction given by the First Appellate Court appears to be correct. There is no illegality or perversity visible in the impugned judgment and decree passed by the appellate Court. There is no substantial question of law visible in the present case. It is not a case by which it may be accepted for final hearing.

Consequently, the present second appeal filed by the appellants Awadh Prasad Patel, Ram Lakhan Patel, Ramrudra Patel, Krashn Kumar Patel, Mst. Ravdi and Kathur is hereby dismissed at motion stage.

Copy of the order be sent to the Courts below alongwith its record for information.