Umesh Sah and Others vs Rajendra Sah and Others

Rekha Kumari, J.—This appeal is directed against the order dated 6.4.2004 passed by the Subordinate Judge I, Supaul in Title Suit No. 59 of 2003 whereby he has allowed the petition filed by the plaintiffs respondents under Order XXXIX Rules 1 and 2 of the CPC and has restrained the defendants appellants to interfere with the peaceful possession of the suit property of the plaintiffs-respondents as also to maintain status quo. Learned counsel for the appellants was heard. No one appeared for the respondents.

The case of the plaintiffs respondents is that the land in suit was acquired by Laxman Sah. The said Laxman Sah had three sons, namely, Raghunandan Sah, Ram Nandan Sah and Narain Sah. But the defendants fraudulently got the land recorded in the revisional survey in the names of the above three sons and also Ram Chandra Sah and Mishri Sah, describing that Laxman Sah had five sons, named above. They also got the land transferred in their names on the basis of forged sale deeds executed in between 1992 and 1996 and on the basis of the fake sale deeds, they are interfering in the possession of the plaintiffs over the suit lands.

The case of the appellants-defendants on the other hand is that Laxman had two wives and Ram Chandra and Mishri were sons from the second wife. Laxman Sah had died before the revisional survey and as such the names of all the five sons of Laxman Sah were recorded. The suit property was in the share of the two brothers by the second wife. They sold the land to the defendants and the defendants came in possession and their names were mutated.

Learned counsel for the appellants submitted that the land was recorded in the revisional survey in the names of all the five sons of Laxman Sah and the plaintiffs-respondents never challenged the said entry in any court of law. Therefore, it cannot be said that the entry is wrong and that the vendors of the appellants were not sons of Laxman Sah. He further submitted that after purchase the appellants/defendants also came in possession. They had filed petition for mutation and in that mutation case the plaintiffs respondents had appeared and made objection. The suit land was inspected by Karmchari and he found the possession of the appellants-defendants and on his report the names of the appellants were mutated. Therefore, the plaintiffs-respondents have no prima facie case. The balance of convenience also does not lie in their favour and as such the learned Subordinate Judge should not have passed the impugned order.

I find substance in the submission of the learned counsel and in view of the submissions made by the learned counsel, it appears that the plaintiffs-respondents have no prima facie case for injunction and it was not proper for the learned Subordinate Judge to pass the impugned order. In the result, the impugned order is set aside and the appeal is allowed.