Laxman Singh and Others vs Smt. Saroj Devi and Others <BR> Smt. Saroj Devi and Others Vs Laxman Singh and Others

G.D. Saxena, J.—Aforesaid two appeals u/s 104 read with Order 41 Rule 1(r) of the CPC 1908 by the plaintiffs/appellants have been preferred against an order dated 15th May 2013 in Civil Suit No. 3-A/2013 passed by the District Judge, Morena, thereby partly allowing the application under Order 39 Rule 1 & 2 of C.P.C. while issuing temporary injunction in favour of the plaintiffs to the effect that defendants No. 1 to 6 and other defendants shall not obstruct in peaceful possession of the plaintiffs nor raise any constructions on the suit land having an area of 10 Bigha and 3 Biswas comprised in Survey No. 558/1 of village Pandokhar, Morena, which was purchased by the plaintiffs from defendants No. 1 to 6 by way of execution of sale deed dated 5th November 2009. Facts some of which were disputed and some of which were admitted by some of the respondents may be recapitulated as under:-

(i) The land comprised in Survey No. 558 having an area of 10 Bighas and 3 Biswas, which is under dispute was earlier belonging to late Shrinath @ Munnalal. After death of Shirinath @ Munnalal and decision of family suit No. 24/1985 for partition vide judgment and decree dated 28th July 1989 by the Fifth Additional District Judge Morena, half portion of the eastern side of Survey No. 558 was given to defendant No. 7- Trilokinath while rest part of the land falling on western side of the suit land was given to the legal heirs, namely, Smt. Saroj Devi widow of Munnalal and Deepak, Pradeep, Sanjay, Pawan, and Aakash, sons of deceased Munnalal (Defendants No. 1 to 6) without mentioning the area of land under partition. Accordingly the portion of the land, which was falling in the share of defendant No. 7-Trilokinath was comprised in Survey No. 558/2 and the portion of the land, which was falling in the share of defendant Nos. 1 to 6 was comprised in Survey No. 558/1.

(ii) It is not disputed that without getting measurement from revenue authorities, Smt. Saroj Devi and others sold the part of land which they received in partition as per verdict dated 28th July 1989 in family suit No. 24/1985 for partition by the Fifth Additional District Judge, Morena from share in Survey No. 558/1 having an area of 100 feet x 50 feet in favour of Yogendra Singh (Plaintiff No. 2) by a registered sale deed dated 5th November 2009. The area of the sold land is admitted but the boundaries of the land are under dispute. As per plaintiff''s version the possession of the land was also handed over to him on registration of the sale-deed.

(iii) It is also not disputed that after partition as per verdict dated 28th July 1989 in family suit No. 24/1985 for partition by Fifth Additional District Judge Morena, Trilokinath Gupta also sold part of his share in Survey No. 558/2 having an area of 190 feet x 25 feet by a registered sale deed dated 3rd February 2010 in favour of Laxman Singh (Plaintiff No. 1). The area of sold land is admitted but the boundaries are under disputed. The sketch map was attached with registered sale deed. The possession of the sold land was handed over to the purchaser. After sale deed, the name of purchaser was mutated on purchased land and the land was also diverted for other purpose.

(iv) It is not disputed that after sale of lands under disputed to the aforesaid plaintiffs, they consolidated the purchased lands for sale and thereafter after dividing the land in to plots sold the small plots for construction to defendant No. 12 to 19 by separated sale-deeds and after purchasing the said plots, the purchasers also constructed the residential houses on their respective plots.

(v) It is not disputed that most of the persons including the purchasers from plaintiffs and defendants had constructed houses over the land on the spot and recently the defendants constructed multi-storeyed buildings and that buildings are ready for sale. It is not disputed that the area of the land on the spot is not same as described in the revenue record.

(vi) It is admitted that the Civil Suit No. 4A/2010 filed by Trilokinath and others against defendant No. 1 to 6 and plaintiffs Laxman Singh and Yogendra Singh for declaration of sale deed dated 5th November 2009 executed by defendant No. 1 Smt. Saroj Devi widow of Shrinath @ Munnalal and others in favour of plaintiffs and subsequent sale-deed dated 26/5/10 in relation of the land that is part of Survey No. 558/2 as void and not effective against Trilokinath and others is at present pending before the court of District Judge Morena M.P.

(vii) It is also admitted that Smt. Saroj Devi widow of Shrinath Munnalal and her sons filed Civil Suit No. 13-A/2009 against defendant Trilokinath for declaration of sale-deed executed by Trilokinath as void and ineffective against them. This suit is also shown to be pending before the Court of First Civil Judge Class one, Morena.

The plaintiffs, on the other hand, filed present suit for declaration of their title and ownership over the part of the land comprised in Survey No. 558/1 and Survey No. 558/2 sold in their favour by previous owners by way of registered sale-deeds as mentioned above with a prayer for perpetual injunction restraining the defendants not to interfere in their peaceful possession over the land as shown in sketch map attached and filed with the plaint. An application under order 39 Rule 1 & 2 of C.P.C. was also filed which is decided by the trial Judge by an order dated 15th May 2013 and thereby issued temporary injunction in favour of the plaintiffs and against defendants restraining them to interfere into possession of the plaintiffs over the vacant lands as marked in sketch lines in the plaint map. The learned trial Judge by an order dated 15th May 2013 while allowing petition under Order 26 Rule 9 of C.P.C. also issued the commission by Revenue Inspector for measurements of the land of Survey No. 558/1 and Survey No. 558/2 with a view to ascertain the land in dispute allegedly transferred by the defendants No. 1 to 7 by two sale-deeds. It is further apparent from perusal of the documents filed on record of this case that on rejection of the application under Order 39 Rule 1 and 2 in the Civil Suit No. 4A/10 filed by plaintiffs Trilokinath and others, they have come to this court in Misc. Appeal No. 265/11 and by an order dated 6th November 2012 on the consent of the parties, the aforesaid appeal was disposed of with a direction to the trial court to conclude the trial of the case within a period of six months and till then the order of status-quo dated 28/1/11 was directed to be maintained by both the parties. The learned trial Judge after affording full opportunity of hearing to the concerned parties and perusal of all the documents and on considering the previous orders of the trial court and the orders passed by this court in another appeal filed in relation with the land under dispute, passed the order and issued the injunction till finality of the suit that the defendants shall not interfere in possession and right of the plaintiffs over the land purchased by them.

The appellants by submitting the instant appeals prayed that while allowing the appeals, directions may be issued against the respondents restraining them from alienating the other properties situated in the same land in which the disputed land is situated.

The respondent No. 5 Pawan Gupta by moving I.A. No. 2505/2013 dated 10th June 2013 submitted that the trial judge rightly passed an injunction in favour of the plaintiffs till finality of the suit and against the defendants for not to interfere into possession of the land remaining on the spot purchased by them from previous owners. It is submitted that the respondent No. 5 had constructed the multi-storied building over the adjacent land owned independently by respondent No. 1 to 6. He is ready to honour the order passed by the trial court. It is also submitted that the grounds as raised for assailing the sale-deeds executed and the disputed boundaries of the land purchased and the measurement of the land on the spot are to be decided after trial, keeping aside, the interim direction dated 3rd June 2013. Hence, it is prayed that such directions may be vacated or modified to the extent of property in respect of sale-deed dated 5th November 2009 alleged to have been executed by respondents in favour of appellants.

No other respondents by filing cross-appeal raised the objection in regard to the appeal filed by the appellants and prayed for setting aside the appeal filed by the appellants.

Heard the learned counsel for the parties. Also perused the record of the trial court and the law applicable to the present case.

On considering the facts as shown to be admitted by the parties, as mentioned herein before, it becomes clear that the plaintiffs/appellants and their transferees are holding the possession of the land on the spot under valid ownership by the dint of registered sale deeds executed by Trilokinath and Smt. Saroj Devi and her sons and therefore unless and until it is proved by leading cogent evidence on record that the sale-deeds executed above are fake and the sale transactions are shameless against them, it can be held that the plaintiffs/appellants have a prima-facie case in their favour. No doubt, the plaintiffs and their transferees have legal rights to protect their possession and right to enjoy their properties. It also appears that there is a grave dispute regarding the identity of disputed plots, therefore, the trial court has rightly issued the local commission for demarcation and measurement and also to get ascertained the identify of the lands under dispute. A bare perusal of the Order 26 Rule 9 of C.P.C. provided that in any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.

In view of the above, it is clear that under Order 26, Rule 9 of C.P.C., the court has the discretion to order local investigation. The object of the local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its pecuniary nature can only be had on the spot. The cases of boundary dispute and disputes about the identity of lands are instances, when a court should order a local investigation under Order 26 Rule 9 of C.P.C. Considering this aspect of the matter, the learned court-below has issued the commission about the identity of the lands. However, while issuing for commission by the court in the present case, there seems to be no justification in restraining the other non-affecting areas owned and possessed by the defendant Nos. 1 to 7. Instead, only the land which was subject matter of the suit can be restrained keeping in view that any transfer or alienation affecting the subject matter of the suit can also affect the interests of the plaintiffs and their transferees. Considering the aforesaid, in the opinion of this court, it would be just and proper that till confirming the order of finalising the report produced by the appointed commissioner before the trial court, the order of injunction dated 15th May 2013 passed by the trial court shall be restricted only with respect to the subject matter of the suit property and not beyond that. The other properties which are not at all related with the suit property but restrained by the aforesaid order shall be free from its clutches. Subject to above directions/observations, the appeals are disposed of.