Smt. Mamta Devi and Another vs Shrawan Kumar and Others

N.K. Mody, J.

Being aggrieved by the order dated 17th July, 2003, passed in Civil Suit No. 12-A/ 3, by Second Addl. District Judge to the Court of First Addl. District Judge, Rewa, whereby the application filed by the respondents under Order XXXIX Rules 1 & 2 CPC has been dismissed, the present appeal has been filed.

Short facts of the case are that the respondents and appellant No. 2 are the - real brothers. Appellant No. 2 sold his one-half share in the suit property to appellant No. 1 vide registered sale deed dated 5.10.98. Respondents filed a suit for declaration and injunction wherein the validity of the sale deed dated 5.10.98 was challenged and an injunction was prayed to the effect that till disposal of the suit, the appellant No. 1 be restrained from interfering in peaceful possession of the respondents, which has been granted by the Court below.

Learned counsel for the appellants submit that the appellant No. 1 is in actual physical possession of the suit property and therefore no injunction could have been granted against appellant No. 1. In support of his plea, learned counsel has submitted various documents. Perusal of those documents show, that by sale deed (Annex.A/2) dated 5.10.98, appellant No. 2 has sold one-half share in the land bearing survey No. 71/1. Document No. 1 is the revenue record for the year 1998-99 to 2001-2002 of the land bearing survey No. 71/1 wherein the appellant No. 2 and respondent No. 1 are shown as owners of the suit property. From the document Annex-A/3, which is Kishtbandi Khatoni for the year 2001-02 and 2002-03, it appears that name of appellant No. 1 has been shown on the land bearing survey No. 71/3 & 532/2, which has nothing to do with the land which is in dispute as the disputed survey No. is 71/1. Moreover as per appellant no. 2, the share of appellant No. 2 was only one-half in the property and this Kishtbandi Khatoni does not show that what happened to the share of the respondents. Since the suit property is undivided Joint Hindu Family property, therefore, appellant no. 2 is having equal share along with respondents no. 1 to 3 unless otherwise is proved. In the sale deed dated 5.10.1998 neither it is mentioned that how the appellant no. 2 is having 1/2 share in the suit properly there is a recital that how the possession of 1/2 share of the ancestral agricultural land is given.

Learned counsel for the appellants has placed reliance on a decision of this Court reported in Smt. Rajeshwari and Others Vs. Balchand Jain and Others, , wherein, this Court has held that every property purchased or held by its members is not a property of joint family Since appellant no. 2 himself has executed the sale deed alleging that he is having 1/2 share in the suit property, therefore, the law laid down by this Court in the above case is of no help to him.

Learned counsel has further placed reliance on a decision of this Court decided on 9.9.2004 in M.A. No. 1614/ 2004 Rajendra Prasad Dwivedi Vs. Atul Kumar Dwivedi & Ors. In para 10 of the order, this Court has observed that :-

The defendant No. 2 executed the registered sale deed in favor of defendant No. 1. The sale deed contains recital of payment of Rs. 2,60,000/- as consideration and also that possession has been given to appellant/defendant No. 1 prima facie there is no material to show that the sale deed was executed by defendant No. 2 in the state of intoxication without understanding or without receiving consideration. Thus, I am of the view that the appellant was prima facie in possession of the suit land since he was having a registered sale deed in his favor containing recital of possession being handed over to him and of payment of the consideration.

The aforesaid case has nothing to do with the present one. Here it is not the appellant No. 2 who is challenging the sale deed executed by him in favor of appellant No. 1. In the present case, the respondents who are co-sharers have filed suit alleging their possession over the suit property and injunction is prayed against appellant No. 1 who is a stranger and has acquired the right on the basis of sale deed executed by appellant No. 2. Appellant No. 1 is free to get the property partitioned but till the property is partitioned, the appellant No. 1 who is a stranger can not disturb the possession of the respondents.

In the foregoing circumstances, the impugned order granting injunction in favor of the plaintiffs/ respondents call for no interference. The appeal is without merit and is accordingly dismissed. Parties shall, however, bear own costs of this appeal.