IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PRANAY VERMA SECOND APPEAL No. 1208 of 2024 RAMKUWAR BAI AND OTHERS Versus NANDKISHORE AND OTHERS Appearance:

Shri Akhil Godha - Advocate for the appellants.

Shri Rohit Sinnarkar -Advocate for the respondent/caveater.

Reserved on : 19.09.2024 Pronounced on : 12.11.2024 ________________________________________________________________

ORDER This appeal under Section 100 of the Code of Civil Procedure has been preferred by defendants 1 to 4 being aggrieved by the judgment and decree dated 26.04.2024 passed in Civil Appeal No.40 of 2022 by the Third District Judge, Shajapur partly reversing the judgment and decree dated 05.11.2022 passed in RCS 138A/2014 by the First Civil Judge, Junior Division, District Shajapur and decreeing the claim of plaintiffs for permanent injunction.

2. The plaintiffs instituted an action before the trial Court for declaration of their title to the suit lands, permanent injunction restraining the defendants from interfering with their possession over the same and for declaration that the sale deed dated 30.09.2014 executed by defendants 1 and 2 in favour of defendants 3 and 4 is null and void.

Signature Not Verified Signed by: JYOTI

3. As per the plaintiffs, the suit lands were earlier held by Babulal, predecessor in interest of defendants 1 and 2. On 04.07.2005 he had entered into an agreement to sale with respect to the same in their favour for a consideration of Rs.4,80,000/- upon payment of the entire consideration. The plaintiffs have been in possession of the suit lands ever since then as owners thereof. However, by a registered sale deed dated 30.09.2014, defendants 1 and 2 have sold the suit lands in favour of defendants 3 and 4 which is illegal.

4. The defendants 1 to 4 contested the plaintiffs' claim by filing their written statement submitting that no agreement to sale was executed by Babulal in favour of plaintiffs who have never been in possession of the suit lands. Sale deed has been legally executed by defendants 1 and 2 in favour of defendants 3 and 4 who have been mutated over the same and are in possession thereof.

5. The trial Court held that plaintiffs have not been able to prove their title to the suit lands on the basis of the agreement to sale as set up by them and since their title has not been proved, their possession would also be deemed not to have been proved. In appeal by plaintiffs, while the dismissal of their claim for declaration of title has been maintained by the lower appellate Court, but upon recording finding that they are in possession of the suit lands, a decree for permanent injunction restraining the defendants from forcibly dispossessing them from the suit lands otherwise than by following the due process of law has been granted. It is this decree for permanent injunction which has been challenged by defendants 1 to 4 in this appeal.

6. Learned counsel for the appellants has submitted that the trial Court had recorded a perfectly just finding negativing possession of plaintiffs over the suit lands. No document was brought on record by plaintiffs to show their possession. Even otherwise since their title Signature Not Verified Signed by: JYOTI was disbelieved, they could not have been held to be in possession. Having found defendants 3 and 4 to be the owners of the suit lands, no decree for permanent injunction could have been passed in favour of plaintiffs. Reliance in this regard has been placed upon the decision of the Apex Court in Padhiyar Prahladji Chenaji (Deceased) through L.R.s. vs. Maniben Jagmalbahi (Deceased) through L.R.s.

and Ors., (2022) 12 SCC 128.

7. I have considered the submissions of learned counsel for the appellants and have perused the record.

8. The trial Court had primarily negatived possession of plaintiffs over the suit lands on the ground that their title has not been proved. There was only a fleeting reference to the agreement to sale as set up by them observing that therein