Ram Lal(Dead) And 5 Others vs Smt. Vijay Laxmi And Another
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Allahabad High Court

Ram Lal(Dead) And 5 Others vs Smt. Vijay Laxmi And Another on 13 February, 2025

Author: Rajnish Kumar

Bench: Rajnish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:9223
 
Reserved
 
AFR
 
Court No. - 4
 

 
Case :- SECOND APPEAL No. - 12 of 2022
 

 
Appellant :- Ram Lal(Dead) And 5 Others
 
Respondent :- Smt. Vijay Laxmi And Another
 
Counsel for Appellant :- Bahar Ali,Ripu Daman Shahi
 
Counsel for Respondent :- Sabhapati Verma,Abha Bajpai,Amarendra Kumar Bajpai,Rakesh Kumar Mishra,Tapasya Bajpai,Vinod Kumar Singh
 

 
Hon'ble Rajnish Kumar,J.
 

1. Heard, Shri Bahar Ali, learned counsel for the appellants and Ms.Tapasya Bajpai along with Shri Amarendra Kumar Bajpai, learned counsel for the respondent no.1. None appeared on behalf of respondent no.2.

2. This second appeal under Section 100 of Civil Procedure Code (here-in-after referred as CPC) has been filed for setting-aside the judgment and decree dated 14.10.2021/26.10.2021 passed in Civil Appeal No.60 of 2013 (Smt. Vijay Laxmi Vs. Ram Lal (Dead) substituted by his legal heirs) by Additional District Judge, Court no.6, Sitapur.

3. The appeal has been admitted on the following substantial question of law:-

"1. Whether learned first appellate court fell in error while granting permanent injunction without recording the finding of possession of the plaintiff/ respondent while maintaining the dismissal of suit for cancellation of sale deed?"

4. Learned counsel for the appellants submitted that the suit for permanent injunction and cancellation of sale deed filed by the plaintiff-respondent no.1 was dismissed by the trial court after considering the pleadings, evidence and material on record but the lower appellate court, though maintained the judgment and decree passed by the trial court to the extent of dismissal of suit in regard to cancellation of sale deed on the ground of unidentifiablity of the portion of land i.e. the land in dispute but held the plaintiff-respondent no.1 entitled for permanent injunction and granted the relief of permanent injunction on 1/4th western portion of Gata No.233 without any evidence and recording any finding of possession of the plaintiff-respondent no.1 on the said portion. Thus, the submission is that the judgment and decree passed by the lower appellate court is not sustainable in the eyes of law and liable to be set-aside.

5. Per contra, learned counsel for the plaintiff-respondent no.1 submitted that the predecessor-in-interest of the plaintiff-respondent no.1 had entered into a family settlement, on the basis of which they were in possession on their portion and accordingly she was in possession on the land in dispute. The possession of the parties has been decided on the basis of Commission Report in the suit for partition. Thus, the injunction has rightly been granted in accordance with law as the plaintiff-respondent no.1 is in possession on 1/4th portion on the western side of Gata No.233. It has further been submitted that the sale deed, without partition could not have been executed. However since that part of judgment and decree passed by the courts below has not been challenged by the plaintiff-respondent no.1, the same is not in issue in this appeal.

6. Learned counsel for the plaintiff-respondent no.1, on the basis of aforesaid submissions, submitted that the permanent injunction has rightly been granted by the lower appellate court in accordance with law. There is no illegality or error in the impugned judgment and decree dated 14.10.2021. He relied on judgment and order dated 10.09.2024 passed in SK. Golam Lalchand Vs. Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes and Others; Civil Appeal No.4177 of 2024 & judgment and order dated 01.05.2024 passed in Ram Balak Singh Vs. State of Bihar and Another; Civil Appeal No.1627 of 2016, both by the Hon'ble Supreme Court.

7. I have considered the submissions of learned counsel for the parties and perused the records.

8. The suit for permanent injunction and cancellation of sale deed was filed by the plaintiff-respondent no.1 alleging therein that the land in dispute i.e. Gata No.233, situated in village Mansoorpur and Gata No.208, situated in village Sitapur (out side the limits of Nagar Palika Parishad) Pargana, Tehsil and District- Sitapur coming from the ancestors was recorded in the name of the plaintiff-respondent no.1 and co-tenure holder Mukund Murari etc. in the record-of-rights. Both the lands are situated nearby. There was a family settlement between the plaintiff-respondent no.1 and co-tenure holders way back and on the basis of same the parties were the owner and in possession on their portion and accordingly the plaintiff-respondent no.1 was in possession on 1/4th portion of Gata No.233 and 208. The defendant-respondent no.2, in collusion with the recorded tenure holder Ramji S/o Madan Gopal, purchased 1/12th part through sale deed in Gata No.233, having an area of 1.615 hec., on account of which there was dispute between the parties. The plaintiff-respondent no.1 filed a suit for partition before the Assistant Collector, 1st Class (Pargana Magistrate, Sitapur), in which a preliminary decree was passed by him and the Lekhpal of the area was directed to submit the plan for partition for final decree, in which defendant-respondent no.2 is also a party. Despite information of the same she got the sale deed executed which is liable to be set-aside.

9. The suit was contested by the predecessor-in-interest of the defendant no.2/appellants by filing the written statement denying the alleged partition and knowledge of pendency of the suit for partition. It was further stated that one of co-tenure holders of Gata No.233 Ramji S/o Madan Gopal executed the aforesaid sale deed in consideration of Rs.50,000/- in favour of the defendant-respondent no.2 on 20.01.2000 and accordingly the mutation was also made as co-tenure holder. The plaintiff-respondent no.1 never raised objection in regard to the said sale deed and mutation. The defendant-respondent no.2 had executed the sale deed of the said part of land in favour of the defendant no.1/ appellants through registered sale deed on 08.11.2007. In pursuance thereof they are in possession on the land in dispute. It has further been stated that in the application for mutation filed by the defendant no.1/ appellants, except the plaintiff-respondent no.1, none had filed the objection in the court of Naib Tehsildar, Sadar-Sitapur. The said mutation case has been decided in favour of the defendant no.1/ appellants by means of the order dated 05.05.2008. In pursuance thereof striking out the name of the defendant- respondent no.2, the name of the defendant no.1/ appellants was recorded. The plaintiff-respondent no.1 filed an appeal against the order dated 05.05.2008 in the court of Sub-Divisional Officer, which has been dismissed by means of the order dated 31.12.2008. Thus, the said order is binding on her. The suit is not maintainable on account of non-implement of necessary parties. The land in dispute is also not ascertainable. Thus, the suit is liable to be dismissed with cost.

10. On the basis of pleadings of parties eight issues were framed by the trial court. Thereafter the evidence was adduced by the parties. After considering the pleadings, evidence and material on record, the suit was dismissed by the trial court by means of the judgment and decree dated 31.07.2013. Being aggrieved the civil appeal was filed by the plaintiff-respondent no.1 before the lower appellate court. The lower appellate court framed two points for determination and partly allowed the appeal granting relief of permanent injunction in favour of the plaintiff-respondent no.1 on 1/4th portion on the western side of Gata No.233. Hence, this second appeal has been filed, which has been admitted on the aforesaid substantial question of law.

11. The learned trial court, after considering the pleadings of the parties, evidence and material on record while deciding the issue nos.1 and 2 i.e. "whether the sale deed dated 12.11.2007 in dispute is liable to be set-aside on the grounds stated in the plaint" and "whether the plaintiff is owner and in possession of the land in dispute" held that Ramji, who was co-tenure holder of plaintiff-respondent no.1, was in possession on his portion on the basis of mutual compromise and partition, had executed registered sale deed to the defendant/ respondent no.2 on 21.01.2000 i.e. about 13 years ago and consequently her name was recorded in the revenue records as Bhumidhar with non transferable rights and co-tenure holder. The plaintiff-respondent no.1 had not raised any objection on the said mutation before the revenue court or filed any suit for cancellation of sale deed. She has also admitted that the land, which was purchased by the defendant-respondent no.2 from Ramji has been sold by her through registered sale deed in favour of the defendant no.1/appellants on 12.11.2007. Thereafter the name of defendant no.1/appellants has been recorded in place of defendant-respondent no.2 in the revenue records, therefore, once the earlier sale deed dated 20.01.2000 has not been challenged, the challenge to the subsequent sale deed executed by the defendant/respondent no.2 in favour of the defendant no.1/appellants is misconceived and not tenable and accordingly decided the issues in negative against the plaintiff-respondent no.1 as she was also not found in possession.

12. The plaintiff-respondent no.1, being aggrieved by the judgment and decree passed by the trial court, challenged the same in civil appeal before the lower appellate court. The lower appellate court confirmed the findings recorded by the trial court in regard to the cancellation of sale deed and rejected the contention of plaintiff-respondent no.1 that final decree has been passed by the concerned court on 07.08.2013 in the suit for partition, in which she has got 1/4th portion on western part of Gata No.233 on the ground that the sale deed in question has been executed on 12.11.2007 and final decree has been passed on 07.08.2013. Besides it, it has not been informed by the plaintiff-respondent no.1 as to which part of the land in dispute has been sold by the defendant/respondent no.2 to the defendant no.1/appellants through sale deed i.e. the boundaries have not been disclosed. The plaintiff-respondent no.1 has also not stated as to on which portion of the land she was in possession after mutual partition and as to whether the sale deed of the said portion of the land has been executed. It has also not been clarified as to why the first sale deed was not objected, whereas she could have taken appropriate action at that time itself, therefore there is no question of cancellation of sale deed in question. However, after holding that there is no ground of cancellation of sale deed on the aforesaid grounds, which includes that the boundaries of the land in dispute of the sale deed in question have not been clarified and the plaintiff-respondent no.1 was in possession of which portion, granted relief of permanent injunction on 1/4th western portion of Gata No.233 on the ground that the same has been given to her by the court and she is in possession on the same, contrary to the aforesaid findings and recording any finding of possession of plaintiff-respondent no.1 on the basis of pleadings, evidence and material on record, which is merely on the basis of contention of the plaintiff-respondent no.1 and may be on the basis of order passed by the court in another proceeding, which could not have been done without adducing any evidence and proof thereof in the present proceedings.

13. It is also noticed that the suit for permanent injunction and cancellation of sale deed was filed in regard to the land, the sale deed in question of which was executed and as per findings recorded by the lower appellate court itself, the said land is not identifiable, therefore, once the land was not identifiable which was involved in the suit, it can not be said without any cogent evidence that the dispute in this suit is in regard to 1/4th portion on the western side of Gata No.233, therefore the relief of permanent injunction could not have been granted by the lower appellate court.

14. The Hon'ble Supreme Court, in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs. and Others; (2008) 4 SCC 594, has held that in a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. The relevant paragraph 15 is extracted here-in-below.

"15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally."

15. The Hon'ble Supreme Court, in the case of Balkrishna Dattatraya Galande Vs. Balkrishna Rambharose Gupta and Another; (2020) 19 SCC 119, has held that the plaintiff has to prove actual possession for grant of permanent injunction and permanent injunction can be granted only to a person who is in actual possession of the property. The burden of proof lies upon the first respondent-plaintiff to prove that he was in actual and physical possession of the property on the date of suit.

16. The Hon'ble Supreme Court, in the case of SK. Golam Lalchand Vs. Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes and Others (Supra), has held that the suit property which is undivided is left with the co-owners to proceed in accordance with law to get their shares determined and demarcated before making a transfer. It is of no assistance to learned counsel for the respondent.

17. The Hon'ble Supreme Court, in the case of Ram Balak Singh Vs. State of Bihar and Another (Supra), has held that where the Consolidation Court has already passed an order recognizing the rights of one of the parties is not barred by Section 37 of the Consolidation Act and that the Civil Court is not competent to either ignore or reverse the order passed by the Consolidation Officer once it has attained finality. It is of no assistance to learned counsel for the respondent.

18. In view of above and considering the over all facts and circumstances of the case, this Court is of the view that the learned lower appellate court could not have granted the relief of permanent injunction without recording a finding of possession of plaintiff-respondent no.1 on the basis of pleadings, evidence and material on record, particularly when the land in dispute is not identifiable because the suit was filed for permanent injunction and cancellation of sale deed for one and the same land. Even if, the plaintiff-respondent no.1 may be in possession on the said portion on the basis of a decree of partition passed by the competent court in accordance with law because the land on which the relief of permanent injunction has been granted is not specifically in issue in the instant proceedings as the land in dispute in these proceedings has been found unidentifiable. Thus, the impugned judgment and decree passed by the lower appellate court is not sustainable in the eyes of law and liable to be set-aside.

19. The appeal is, accordingly, allowed. The impugned judgment and decree dated 14.10.2021/26.10.2021 is hereby set-aside to the extent of grant of relief of permanent injunction to the plaintiff-respondent no.1 without disturbing the remaining portion of the impugned judgment and decree which shall remain intact. No order as to costs.

(Rajnish Kumar, J.)

Order Date :- 13.2.2025

Haseen U.