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2013 Supreme(Pat) 430
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAKESH KUMAR, J.
Jagannath Prasad Sinha @ Jagarnath Prasad Singh, son of late Nand Prasad Sinha, resident of village Rampur Khurd, P.S. Sahebganj, P.O. Karnaul Sub Division and Munsiff (West) Muzaffarpur, Distt. - Muzaffarpur at present residing in Subhash Nagar (Bibiganj) P.S. Sadar P.O. Bhagwanpur Chauk, Sub Division and Munsif Muzaffarpur East, Distt. – Muzaffarpur. - Plaintiff - Appellant
Versus
1. Pinky Chaudhary , W/o Ranjit Chaudhary
2. Rita Devi, W/o Sarvesh Chaudhary
3(a) Shilpi 3(b) Sunny Both are minors, R/o Village + P.O. - Kharauna Dihi, P.S. – Kurhani, District – Muzaffarpur.
4. Sarvesh Choudhary Son of Ganga Chaudhary All residents of village Kharauna Dihi, P.O. Kharauna Dihi , P.S. – Kurhani, Sub Division and Munsifi Muzaffarpur West, Distt. – Muzaffarpur.
5. Sadan Kishore, S/o Late Baidyanath Singh
6. Manju Devi, W/o Late Madan Kishore
7. Panpati Devi wife of Late Baidyanath Singh
No. 5 to 7 are residents of village Rampur Khurd, P.S. Sahebganj, P.O. Karnaul, Sub Division and Munsifi Muzaffarpur West, at present Generally residing in Bharat Wagan Colony, Sanjay Cinema Road, Brahampura Muzaffarpur town P.S. Brahampura P.O. – M.I.T. Sub Division and Munsifi Muzaffarpur East, District - Muzaffarpur. - Defendants-Respondents
Miscellaneous Appeal No.450 of 2010
Decided on: 8-04-2013
For the Appellant: Mr. Shakti Suman Kumar, Mr. Rajesh Ranjan-1 Mr. Uma Kant Shukla.
For the Respondent No. 1, 2 & 4: Mr. Ved Prakash Srivastava.
The presumption of validity of registered sale deeds until declared void and the requirement to establish possession at the time of hearing for injunction relief.
Headnote:
Injunction - Property Dispute - Code of Civil Procedure, 1908 - Order 39 Rule 1 & 2, Section 151 C.P.C. - 1908 (C.P.C.)
Fact of the Case:
The plaintiff filed a suit for declaration of exclusive title over a property and to declare certain sale deeds as void. The plaintiff claimed to be in exclusive possession of the property and sought injunction against interference by the defendants. The court rejected the injunction petitions filed by the plaintiff.
Finding of the Court:
The court found that at the time of hearing, the suit property was in possession of the defendants, and therefore, rejected the plaintiff's petitions. The court also noted that the registered sale deeds executed by the defendants were presumed to be legal and valid until declared void.
Issues: The main issues were the possession of the suit property, the validity of the sale deeds, and the entitlement to injunction relief.
Ratio Decidendi: The court decided that the possession of the suit property at the time of hearing was with the defendants, and the registered sale deeds were presumed legal and valid until declared void.
Final Decision: The appeal was dismissed without any cost.
The present appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as “C.P.C.”) has been filed against an order dated 13.4.2010 passed by Sri Om Prakash Singh, Sub Judge-8th, Muzaffarpur (hereinafter referred to as “Sub Judge”), in Title Suit No. 521 of 2007. By the said order learned Sub Judge has rejected the petitions filed under Order 39 Rule 1 & 2 and petition under Section 151 C.P.C. on behalf of the plaintiff / appellant.
2. The plaintiff / appellant had prayed for restraining the defendant 1st party from interfering with the possession of the plaintiff over the suit land and also for maintaining status quo till disposal of the suit.
3. Short fact of the case is that the plaintiff / appellant had filed a suit vide Title Suit No. 521 of 2007 for declaration of his exclusive Title over the suit property described in Schedule - I of the plaint and for declaration that the sale deeds dated 9.8.2007 executed by defendant no. 5 in the name of defendant no. 1 and 2 in respect of suit properties described in Schedule II & III of the plaint as void, illegal and inoperative. It was claimed that late Nand Prasad Sinha (father of the plaintiff) had two sons namely, late Baidya Nath Prasad Sinha and the plaintiff. Father of the plaintiff died in or about 1949 leaving behind his widow namely, Smt. Dhanwanti Devi, the plaintiff and the defendant 2nd party as his sole heirs. Subsequently, mother of the plaintiff died in the year 2000. In the year 1968 the plaintiff purchased properties mentioned in Schedule–I out of his own income. However, since the plaintiff was engaged as lecturer, his elder brother late Baidyanath Prasad Sinha was offered to attend registration office and to get requisite sale deed in respect of land mentioned in Schedule - I. However, his elder brother Baidyanath Prasad Singh also got his name included as co-purchaser in the sale deed. The plaintiff / appellant claimed to be in exclusive possession of the suit property. On 23.7.1984 plaintiff’s brother Baidyanath Prasad Singh signed a memorandum of private partition along with plaintiff whereby entire suit land along with other properties were partitioned in between the plaintiff and his brother late Baidyanath Prasad Singh. According to the plaintiff the entire suit property remained under exclusive ownership and possession of the plaintiff. As per the case of plaintiff / appellant on 9.8.2007 respondent no. 5 (son of his brother late Baidyanath Prasad Singh) fraudulently executed sale deeds in favour of respondent no. 1 and 2, and thereafter, respondent 1st set started interfering with the possession of the plaintiff. Accordingly, suit was filed in which on 14.3.2008 an injunction petition was filed. The plaintiff / appellant further has stated that respondent 1st set had filed a writ petition vide Cr.W.J.C. No. 121 of 2007 for restoration of their possession over the Schedule II and Schedule III land which was dismissed on 4.7.2008. But subsequently, respondent 1st set forcibly took possession of Schedule II and Schedule III property of the suit on 9.7.2008. Thereafter, the plaintiff / appellant besides lodging criminal case also filed a petition on 15.9.2008 before the court below for mandatory injunction seeking restoration of possession. However, by the impugned order the learned Sub-Judge has rejected the same, which has been impugned in the present appeal.
4. Sri Uma Kant Shukla, learned counsel for the appellant submits that though there was specific case for grant of injunction as well as for restoring possession in favour of the plaintiff / appellant, the learned Sub Judge without any cogent reason has rejected the same. To corroborate his submission learned counsel for the plaintiff / appellant has relied on a single bench order of this court reported in 2006 (3) PLJR 454 (Savitri Devi vs. Rajo Devi & Anr.).
5. Sri Ved Prakash Srivastava, learned counsel for respondent no. 1, 2 and 4 has argued that the plaint
