Allahabad High Court
Smt. Subhashani vs Smt. Saroj Kumari on 19 November, 2024
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:76164
Court No. - 4
Case :- SECOND APPEAL No. - 206 of 2024
Appellant :- Smt. Subhashani
Respondent :- Smt. Saroj Kumari
Counsel for Appellant :- Santosh Kumar Kanaujia
Hon'ble Rajnish Kumar,J.
1. Heard Shri Syed Ahmad Jamal, Advocate holding brief of Shri Santosh learned counsel for appellant.
2. This second appeal under Section 100 C.P.C. for setting aside the judgment and order dated 10.09.2024 as well as decree passed by Additional District Judge, court no.4, Lakhimpur Kheri in Civil Appeal No.75 of 2023 (Smt. Subhashani Vs. Smt. Saroj Kumari) and the judgment and order dated 15.12.2023 as well as decree passed by Civil Judge, Senior Division, Lakhimpur Kheri in Civil Suit No.219 of 2021 (Smt. Subhashani Vs. Smt. Saroj Kumari with a further prayer to decree the civil suit has been filed by the appellant.
3. Learned counsel for the appellant submits that the appellant had filed the simpliciter suit for permanent injunction on the basis of possession. The possession was admitted by the respondent but the learned trial court as well as the appellate court have dismissed the suit of the appellant and the appeal filed by the appellant on the ground that the appellant has failed to prove her title on the land in dispute, therefore the judgment, order and decree passed by the courts below are not sustainable in the eyes of law and liable to be set-aside. He relies on Rame Gowda (D) by LRS. Vs. M. Varadappa Naidu (D) LRS and Another; AIR 2004 SC 4609.
4. Having considered the submissions of the learned counsel for the appellant, I have perused the records.
5. The suit for permanent injunction was filed by the appellant claiming that she has purchased 500 Sq.Ft. land out of 1200 Sq.Ft. from the respondent, by means of the sale deed dated 20.02.2020 and she is in possession on the remaining 700 Sq.Ft. land. The respondent was trying to evict the appellant from the said portion on 01.04.2021, therefore, the occasion arose to file the suit. The suit was contested by the respondent denying the averments made in the suit. It was further alleged that only 500 Sq.Ft. land out of 1200 Sq.Ft. land was sold to the appellant through a registered sale deed and on the remaining portion the appellant had made illegal possession and she had executed a receipt on 20.02.2020 duly signed by her with two witnesses; one of which is her husband, to the affect that in consequence of the sale deed of remaining portion, she had handed over the possession of remaining 700 Sq.Ft. Thereafter four issues were framed and the evidence was adduced by the parties.
6. After considering the pleadings, evidence and material on record, the trial court recorded a finding that the possession of the appellant on the remaining 700 Sq.Ft. land is not since 20.02.2020 in view of the receipt executed by her on the same date, which has been admitted by her while appearing as PW-1. She also admitted her signature on the same. She also admitted in the said receipt that plot no.94 is residential plot and after 500 Sq.Ft. land, whatever the land in the said plot is being vacated by her. She also admitted that the owner of the land in dispute is Saroj Kumari i.e. the respondent. Thus, the trial court has recorded a finding that the ownership has not been disputed and for possession already a receipt was executed to the effect that she is vacating and the possession is taken by the respondent. The learned trial court, accordingly, dismissed the suit as the appellant failed to prove her title on the remaining portion of the plot, in which 500 Sq.Ft. land was purchased by her through a registered sale deed.
7. The learned trial court has recorded a finding that only 500 Sq.Ft. land was purchased by the appellant out of 1200 Sq.Ft. land and the land of the appellant, which has been purchased by her is not identifiable, therefore, no injunction can be granted. The illegal possession made by the appellant as alleged by the respondent though denied but could not be proved by any cogent evidence. The Hon'ble Supreme Court, in the case of Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) Lrs and Another (Supra), has held that the settled possession or effective possession of a person without title would entitle him to protect his possession even as against the true owner. However in view of the aforesaid receipt dated 20.02.2020 executed by the appellant, it can not be said that the appellant had settled or effective possession, even if she would have been forceful intermittent possession.
8. In view of above and considering the over all facts and circumstances of the case, this Court does not find any illegality or error in the judgment and order passed by the trial court as well as the appellate court. No substantial question of law arises in this second appeal. The second appeal has been filed on misconceived and baseless grounds.
9. The second appeal is, accordingly, dismissed.
...................................................................(Rajnish Kumar, J.)
Order Date :- 19.11.2024
Haseen U.
