Mahesh Jha and Others vs Smt. Yasoda Devi

Mungeshwar Sahoo, J.—This second appeal has been filed by the defendants against the Judgment of reversal dated 2.8.1991 passed by Sri Prakash Rai, Add. District Judge IVth Vaishali at Hajipur in title appeal of57 of 1987 / 7 of 1981 allowing the appeal and thereby reversing the Judgment and Decree dated 24th July, 1987 passed by Addl. Munsif I, Vaishaia at Hajipur in title suit of52 of 1982. The plaintiff-respondent, Smt. Yashoda Devi, filed the aforesaid title suit of52 of 1982 praying for decree for permanent injunction restraining the defendants from making any block at the spot as mentioned in the plaint and also from dispossessing the plaintiff from disputed land.

According to the plaintiff, the suit property was purchased by Mahavir Jha in the name of his wife Ram Pyari Devi. On the death of Ram Pyari Devi, he executed 3 registered gift deeds on 12.11.1973 in favour of the plaintiff Yasoda Devi and since then she is the owner of the property and is continuing in possession thereof. Because the property belonged to Mahabir Jha who had gifted the property to the plaintiff the second daughter Rajeshwari Devi who is defendant of8 had no authority to execute registered sale deeds in favour of the defendants. According to the plaintiff, the sale deeds are fraudulent and on the basis of the sale deeds, the purchasers never came in possession of the suit property. The defendants-appellants appeared and filed contesting written statement mainly contending that the suit property was self-acquired property of Ram Pyari Devi and, therefore, on her death, the property was inherited by her husband and two daughters. On the death of Mahabir Jha, Rajeshwri Devi the second daughter became the owner of the half of the suit property and, therefore, she executed the sale deed and registered the same and delivered possession to the appellants.

After trial, the trial Court recorded findings that the property was self-acquired property of Ram Pyari Devi so the gift deed executed by Mahabir Jha is invalid document and also recorded finding of possession in favour of the appellants. However, on appeal, the appellate Court after considering the materials available on record came to the conclusion that the property was acquired by Mahabir Jha in the name of his wife Ram Pyari Devi, therefore, the gift deed executed and registered in favour of the plaintiff is valid document. Appellate Court also recorded a finding that the plaintiff is in possession of the suit property.

At the time of admission on 6.1.1992, following two substantial question of law were formulated :-

(i). Whether the suit for injunction in the present form is maintainable?

(ii). Whether the provisions of Benami Transaction Act will apply to the fact of this case?

During the course of hearing of this second appeal, the learned senior counsel submitted that the second substantial question of law was formulated in the year 1992 when the Apex Court in the case of Mithilesh Kumari 1989 SC 1247 has held that the provisions of Benami Transaction (Prohibition) Act, 1988 will apply to the pending suits and, therefore, this substantial question of law were formulated. However, subsequently the said decision was overruled by the Apex Court in the case of R. Rajgopal Reddy case reported in 1996 SC 238 and, therefore, now, at present this substantial question of law is not required to be answered, therefore, he is not pressing this second substantial question of law.

So far the first substantial question of law is concerned, the learned senior counsel relied upon a decision of the Apex Court reported in AIR 2008 S.C.W. 2692 Anathula Sudhakar Vs. P. Buchi Reddy and submitted that in the present case, when complicated question of title was involved, simple suit for injunction was not maintainable and the same could not have been decided in the case. According to the learned counsel, the plaintiff should have prayed for declaration of title.

In the present case at our hand according to the appellate Court, the property was acquired by Mahabir Jha. Admittedly, the gift deeds were executed and registered in the year 1973. The finding of the appellate Court is that the plaintiff is in possession of the suit property. Therefore, the lower appellate Court has accepted the case of the plaintiff. The defendant raised the question of title, i.e., the question that the property was acquired by Ram Pyari Devi herself. According to the appellants, the suit property was self-acquired property of Ram Pyari Devi which has been negatived by the lower appellate Court.

In the decision relied upon by the appellant at pargraph 15, the Apex Court has held that there are several decisions taking the similar view that in a suit for injunction, the question of title does not arise or would arise only incidentally or collaterally and, therefore, a simple suit for injunction will not be barred. The Apex Court in the said decision at paragraph 17 has held that if there is merely an interference which plaintiff possession or threat of dispossession, it is sufficient to sue for injunction simpliciter. So far paragraph 21 of the said decision, which is being relied upon by the learned counsel for the appellant is concerned, in my opinion, it will not apply in the present case because in that case, the plaintiff himself was claiming title from a person who had no title to the property which would be evident from paragraph 23 of the said Judgment. In the present case the fact is otherwise. The defendant raised the question of title, therefore, in my opinion, the plaintiff is not required to amend the plant according to the defence of the defendants and pray for relief. In view of the observation of the Apex Court at paragraph 17 itself in the aforesaid decision, it cannot be said that the present suit was not maintainable, particularly when appellate Court recorded a finding that 3 gift deeds of the year 1973 are valid and genuine gift deeds. Admittedly, the said gift deeds were never challenged by the vendors of the appellant. Possession of the plaint has also been recorded by the appellate Court which is finding of fact. In view of the above facts and circumstances of the case, the substantial question of law formulated is answered against the appellant and it is held that the suit for simpliciter injunction is maintainable in the facts and circumstances of the case. Accordingly, this second appeal is dismissed.