2024:CGHC:45129 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 1019 of 2024

1 - Kamal S/o Dhannelal Aged About 45 Years, Caste - Lodhi, R/o Village Khudmudi, Tahsil Dongargarh, District - Rajnandgaon Chhattisgarh ... Petitioners versus

1 - Sanjay S/o Dhannelal, Aged About 35 Years, Caste - Lodhi, R/o Village Khudmudi, Tahsil - Dongargarh, District Rajnandgaon Chhattisgarh

2 - State Of Chhattisgarh Through The Collector, Rajnandgaon, District Rajnandgaon Chhattisgarh ... Respondents For Petitioner : Mr. AD Kuldeep, Advocate ForRespondent/State : Ms. Pragya Shrivastava, Dy. GA SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

O rder on Board

20/11/2024

1. This petition has been filed being aggrieved by the order dated

16.10.2024 passed in Misc. Civil Appeal No.7/2024, whereby, the Digitally signed by SHYNA AJAY Date: 2024.11.20 District Judge, Dongargarh, District Rajnandgoan, dismissed the appeal and afÏrmed the order dated 19.9.2024 passed by the Civil Judge, Junior Division, Dongargarh, District Rajnandgaon in Civil Suit No.36A/2024, whereby, the application preferred by the petitioner/plaintiff under Order 39 Rule 1 and 2 of the CPC was dismissed.

2. Necessary facts of the case, in brief, are that the petitioner has filed a Civil Suit for declaration of title and permanent injunction making averment inter alia that at Village Khudmudi, there is an ancestoral land admeasuring 6.35 acres and in a partition, the father of respondent No.1 and the petitioner, had given the share in respect of the said land to both the brothers and they are in possession of their respective land. The petitioner has purchased the suit property (land) bering Khasra No.351/1 admeasuring 0.26 decimal and Khasra No.354/1 admeasuring 0.70 decimal, total admeasuring 0.96 decimal from Narayanlal, Devnath and Sushila for a consideration of Rs. 66,000/- through the registered sale-deed dated 5.5.2006. In the land record, the name of the petitioner has been recorded but his brother- respondent No.1 has threatened to dispossess him. Respondent No.1 in his written statement denied the plaint averments and stated that the subject property (land) is ancestoral and has been given in the share of respondent No.1 and he is in possession of the said land. Both the Courts below by way of the impugned orders have afÏrmed the possession of respondent No.1 and dismissed the application filed by the petitioner under Order 39 Rule 1 and 2 of the CPC. Hence, this petition.

3. Learned counsel for the petitioner would submit that the impugned orders are not sustainable. The subject land is the self-acquired property of the petitioner and the petitioner is still in possession of the subject land. Hence, learned counsel for the petitioner prays to allow the petition.

4. Heard learned counsel for the petitioner and also perused the documents annexed with the petition carefully.

5. Admittedly, as per the plaint averments, the partition took place in the year 2010 and the subject land was purchased in the year 2006 in the name of the petitioner. The claim of respondent No.1 is that the subject land was ancestoral and the same is derived out of the same nucleus of the ancestral properties. The fact as to whether the subject land was acquired by the petitioner/plaintiff as self-acquired property or not has to be established during the trial. Considering the earlier partition effected by the father of the petitioner and respondent No.1, the Courts below reached to a conclusion that the subject land was allotted in the share of respondent No.1.

6. For the foregoing, I am of the view that the Courts below, after taking into consideration that the parameters for grant of temporary injunction has been properly established, have passed the impugned orders, which do not suffer from any illegality or infirmity warranting interference by this Court.

7. Resultantly, the Petition fails and is hereby dismissed.

Sd/-

(Deepak Kumar Tiwari)

Judge Shyna