In a second appeal, the High Court cannot interfere with concurrent findings of fact unless they are shown to be perverse or illegal; additionally, a suit for permanent injunction is unsustainable if the plaintiff is not in possession and fails to seek the consequential relief of recovery of possession.

NAFR

Judgment on Board

1. The plaintiff/appellant has preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity CPC) against the judgment & decree dated 12.02.2016 passed by the Learned District Judge, Mahasamund, C.G. in Civil Appeal No. 118-A/2014 (Rohit Patel Vs. Smt. Devkumar & Anr.) arising out of the judgment and decree dated 01.02.2010 passed by the Trial Court in Civil Suit No. 34-A/2009 (Rohit Patel Vs. Smt. Devkumar & Anr.) whereby the learned trial Judge has dismissed the suit of the plaintiff/appellant. For the sake of convenience, the parties would be referred as per their status before the learned trial Court.

2. The plaintiff instituted the suit seeking a decree of permanent injunction, restraining the defendants from interfering with or entering upon the suit land bearing Khasra No. 284, admeasuring 0.41 hectare, situated at Village Achanakpur, Patwari Halka No. 6, Ranim, Patewa, Tahsil and District Mahasamund pleading inter alia that the plaintiff purchased the suit land from Gangaram Patel by a registered sale deed dated 22.07.2008 and thereafter got the land mutated in his name. Since then, he claims to be in peaceful possession and cultivating the land. It is further averred that the defendant forcibly ploughed the suit land and sowed paddy thereon, thereby causing interference in the plaintiff’s peaceful possession and obstructing his use and enjoyment of the agricultural land.

3. Defendant No.1, in her written statement, denied the averments made in the plaint and specifically disputed the plaintiff’s title and possession over the suit land. It was pleaded that the suit land was jointly owned and possessed by defendant No.1 and her son Gangaram. It was further averred that after the death of Gangaram on 20.01.2009, defendant No.1 and Gangaram’s widow, Chitrarekha, continued in possession of the suit land. The defendant further alleged that Gangaram had committed suicide on 20.01.2008 on account of threats and harassment. It was also pleaded that, upon inquiry conducted by the Additional Tahsildar, Patewa, a report was submitted stating that mutation of the suit land in favour of the plaintiff had been effected without following the prescribed rules. On such grounds, it was contended that the plaintiff had no title over the suit land and the suit deserved to be dismissed.

4. After framing the issues, the Trial Court upon appreciation of the oral and documentary evidence, held that though the plaintiff relied upon a registered sale deed dated 22.07.2008 executed by Gangaram Patel and mutation entries in his favour, he failed to produce any material to establish that prior to the sale, the entire suit land had fallen exclusively to the share of Gangaram Patel. The Court found that after the death of Bharat, the suit land remained joint property of defendant No.1 and her son Gangaram. Consequently, Gangaram was competent to transfer only his own share and had no authority to alienate the share of defendant No.1. On such reasoning, the issue of title was held to be only partially proved. With regard to possession, the Trial Court recorded that in cross-examination the plaintiff himself admitted that defendant No.1 had sown and harvested the crop over the suit land and had been in possession for about four months prior to the suit. The plaintiff also admitted that he had not lodged any report regarding the alleged dispossession. On the basis of such admissions, coupled with the defendant’s evidence asserting long possession, the Trial Court held