Chattisgarh High Court
Rajendra Kumar Rathore vs Ramgopal on 1 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No. 454 of 2018
Judgment Reserved on 13/04/2022
Judgment Delivered on 01/07/2022
Rajendra Kumar Rathore, Aged 50 years, S/o. Late Shri Narmada Prasad
Rathore, Caste Rathore, residents of village Ward No.18, near B.T.I. Janj-
gir, P.S. Tahsil Janjgir, District Janjgir Champa (CG)
---------Appellant/Defendant
VERSUS
1.Ramgopal, aged 50 years, S/o. Late Shri Bhajoram, Caste Suryawanshi,
R/o. Village Sharda Chowk, Janjgir, Tahsil- Janjgir, District Janjgir Champa
(CG)
2.Roopbilas, aged 60 years,S/o. Shri Bhajoram, Caste Suryawanshi, R/o.
Village New Rajendra Nagar, Vijeta Complex, House No. 242, Tahsil-
Raipur Distict Raipur (CG)
3.Govind Prasad, aged 52 years, S/o. Late Shri Bhajoram, Caste
Suryawanshi, R/o. Village Ward No. 17, Janjgir, Tahsil - Janjgir, District
Janjgir Champa (CG)
4.Bisahulal Bouddh, aged 69 years, S/o. Jotram,
5.Torendra Kumar, aged 46 years, S/o. Bisahulal.
Both are residents of village Budena, Tahsil Nawagadh, District Janjgir
Champa (CG)
6.State of Chhattisgarh, through the Collector, District Janjgir Champa
(CG) ----------Respondents
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For the Appellant : Mr. Somnath Verma, Advocate
For the Respondents : Mr. Priyanshu Gupta, Panel lawyer
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Hon'ble Shri Justice Narendra Kumar Vyas
CAV Judgment
1. Heard on admission.
2.This Second Appeal under Section 100 of Civil Procedure Code, has
been filed by the defendant No.1 against the judgment and decree
dated 15.05.2018 passed by District Judge, Janjgir Champa in Civil Ap-
peal No. 75-A/2017 affirming the judgment and decree dated
07.10.2017 passed by First Civil Judge Class-I Janjgir Champa in Civil
Suit No. 2-A /2013 by which learned trial Court has decreed the suit for
permanent injunction and for obtaining possession in regard to the suit
land.
3.For the sake of convenience, parties hereinafter will be referred to as per
their status shown in the Civil suit No. 2-A /2013 before the trial Court.
4.The necessary facts for the disposal of the present appeal, in short, are
that the plaintiff has filed the suit for permanent injunction, mainly con-
tending that the suit property situated at village Khoksa bearing khasra
No. 2766/3 area 0.20 acres out of which area 0. 10 acres of land is in
dispute and the same will be referred to as suit property. The suit prop-
erty is ancestral property of plaintiff and defendants No. 2 to 4. It has
been contended that plaintiff's father Bhojram has received the property
in pursuance of partition dated 12.01.2004 done by Tahsildar Janjgir.
Before the death of Bhojram, plaintiff and defendant No. 2 and 4 being
co-parceners of the property are in possession and title holder of the
suit property. Defendant No.1 has neither title holder, possession over
the suit property nor Bhorjram has given any permissive possession to
the defendant No.1 over the suit land. The land of defendant No.1 was
situated at the east side of the suit property and with intention to en-
croach, he has constructed the boundary over the suit property which is
illegal. During pendency of the suit the plaint was amended, denying the
averment made in the written statement contending that defendant no.1
has not executed any agreement to sell with the plaintiff's father regard-
ing purchase of suit property. In fact, the plaintiff's father has taken loan
of Rs. 25,000/- from defendant no.1 on 12.01.2004 and in the said
stamp paper agreement has been prepared and his father's signature
has been signed whereas the plaintiff has not put his signature. The sig-
nature on the stamp paper is fabricated one. It has been further con-
tended that defendant no. 1 has sought Rs. 1,20,000/- whereas he has
given loan of Rs. 25,000/- only. When this fact was enquired by the
plaintiff he has tendered apology for the same but has not returned the
alleged agreement. On the above pleadings the plaintiff has filed suit
claiming grant of permanent injunction restraining the defendant no.1
from dispossessing the plaintiff or to do any construction work. Alterna-
tively, it was prayed that possession be also granted from the defendant
no.1.
5. Defendant No.1 has filed the written statement denying the allegation
made in the plaint contending that the defendant No.1 has executed an
agreement of Rs. 1,20,000/- for purchase of the property on 12.01.2004
with the plaintiff's father. But the plaintiff's father has not executed the
sale deed and specifically pleaded that the plaintiff and defendant No.1
are not in possession of the suit property. It has been further contended
that defendant No. 1 has executed an agreement on 12.01.2004 for ex-
ecuting sale deed of the suit property for sale consideration of RS.
4,00,000/- out of which Rs. 1,20,000/- has already been given and for
that an agreement in presence of the witness has been executed on the
same and possession has been given by plaintiff father of the suit prop-
erty on the same day. As such, the suit property is not in possession of
the plaintiff and defendant no. 2 to 4. The defendant no. 1 has sent reg-
istered notice on 20.01.2005 to execute the sale agreement but he has
not executed the sale deed on the count that his father is not keeping
good health and subsequently plaintiff's father expired and he would
pray for dismissal of the suit.
6. Defendant No. 2 has filed the written statement and supported the case
of the plaintiff and has stated that plaintiff and defendant No. 2 to 4 are
in possession of the suit property and are title holder. It has also been
admitted that the suit property is adjacent to the land of the defendant
No.1. It has also been admitted by defendant No.2 that the suit filed by
the plaintiff kindly be allowed. Defendant No. 3 and 4 have filed the sep-
arate written statement wherein they have supported the case of the
plaintiff and have stated that plaintiff and defendant No. 2 to 4 are in
possession of the suit property and they are the titleholder of the suit
property.
7. On the pleading of the parties, learned trial Court has framed as many
as three issues. The plaintiff to substantiate his claim has examined
himself as (PW-1) and exhibited documents Map (Ex.P-1), Kistabandi
khatauni (Ex.P-2), Khasra panchasala (Ex.P-3), agreement (Ex.P-4), or-
der of Tahsildar dated 12.01.2004.
8. The plaintiff was examined in examination-in-chief by way of affidavit
and reiterated the stand taken by him in the plaint. The witness was
cross-examined by the defendant No.1 and has denied the factum of ex-
ecution of agreement for sale consideration of Rs. 4,00,000/-. He has
admitted that at the time of execution of Ex.P-4 he was not present. It
has also been denied that (Ex.P-4) has been written fraudulently, there-
fore, he has not called the witnesses. He has also stated that he has not
written any report against the defendant no.1 in police station nor filed
any complaint against him.
9. The defendant No.1 to substantiate his claim has examined Rajendra
Kumar Rathore as (DW-1), Vijay Kumar Pandey (DW-2), Jawahar Lader
(DW-3), Dinesh Kumar Yadav (DW-4) and exhibited documents Ma-
hadannama (Ex.D-1), Registered notice (Ex.D-2), Acknowledgement
(Ex.D-3), Bill (Ex.D-4), Photograph (Ex.P-5 and Ex.P-6), Khasra Map
(Ex.D-7).
10. Learned trial Court has framed additional issue on 06.10.2017 whether
defendant No.1 has taken possession of the suit property illegally. On
that issue both the parties have not chosen to lead evidence. Learned
trial Court vide its judgment and decree dated 07.10.2017 has decreed
the suit in favour of the plaintiff. Learned trial Court while decreeing the
suit of the plaintiff has recorded a finding that in view of agreement
Ex.D-1, the defendant No.1 has not acquired right over the property as
the agreement with Bhojram was executed on stamp of Rs. 50 whereas
the said document was not registered in accordance with the provisions
of Section 17 of the Indian Registration Act, 1908. It has been further
held by the learned trial Court that If the property is valued more than
Rs. 100 then it should be registered sale deed. Therefore, it is an agree-
ment, not registered sale deed. As per section 53(A) of the Transfer of
Property Act, the property can be transferred through registered deed
only since it is an agreement written on the stamp of Rs. 50/- and not
registered sale deed and it has not been mentioned in Ex.D-1 that Bho-
jram has given possession of the suit property on 12.01.2004 to Rajen-
dra Kumar, therefore, decreed the suit granting declaration that plaintiff
and defendant no. 2 and 3 along with Latelinbai are entitled to get pos-
session of the suit property from defendant no.1 within three months.
Learned trial Court has also granted decree restraining the defendant
no.1 not to interfere in possession of the suit property after delivery of
possession. Against that order, the defendant No.1 has preferred first
appeal registered as Civil Appeal No. 75-A/2017, before the learned Dis-
trict Judge, Janjgir who vide its judgment and decree dated 15.05.2018
has dismissed the said appeal while recording a finding that the defen-
dant No.1 has taken a ground that he is possession of the suit property
for more than 12 years, therefore, on the basis of adverse possession
he is claiming title over the suit property. But in the written statement he
has taken a ground that plaintiff's father has executed an agreement for
sale of property for sale consideration of Rs. 4,00,000/- both the
grounds are inconsistence ground. Learned first Appellate Court relying
upon the judgment passed by the Hon'ble Supreme Court in the case of
Achal Reddi vs Ramakrishna Reddiar And Ors AIR 1990 SC 553 has
held that the purchaser who got into possession under an executory
contract of sale in a permissible character cannot contend that his pos-
session was adverse and accordingly dismissed the appeal. Against the
judgment and decree passed by the Appellate Court, the defendant
No.1 has preferred the Second appeal under Section 100 CPC.
11. Learned Counsel for the appellant would submit that trial Court has
committed illegality in granting decree of possession and injunction
whereas possession of the plaintiff has not been proved. To butters his
submission, he would refer to the judgment of Hon'ble Supreme Court
in the case of Jharkhan State Housing Board vs. Anirudh Kumar
Sahu AIR online 2018 SC 721 wherein it is held that mere suit for per-
petual injunction without claiming any relief of declaration as to the entry
in the record of right, declaration of title and for confirmation of posses-
sion, the suit for permanent injunction is not at all maintainable. He
would further relied upon the judgment of Hon'ble Supreme Court in the
case of T.V. Ramakrishna Reddy vs M. Mallappa AIR 2021 Supreme
Court 4293 wherein it is held that suit simpliciter for permanent injunc-
tion without seeking a declaration of title was not tenable and would
submit that substantial question of law exists and the appeal be kindly
admitted for hearing.
12. I have heard learned counsel for the appellant and perused record of
the Courts below with utmost satisfaction.
13. From the contents of plaint averment, evidence brought on record that
the plaintiff and defendant No. 2 to 4 are the title holder of the property
and the defendants are claiming title over the suit property on the basis
of alleged agreement dated 12.01.2004 which is not registered and on
the basis of that agreement any right can be transferred in favour of de-
fendant No.1. Learned trial Court has recorded a finding that in the
agreement dated 12.01.2004, it is nowhere stated that after execution of
the said agreement possession has been given to the defendants.
Learned first Appellate Court while appreciating the evidence, material
on record and more particularly that documentation of Ex.D-1 was done
by Chandrasen but Chandrasen or other witnesses have not been ex-
amined, therefore, the defendant no.1 has not proved Ex.D-1 and even
the defendant no.1 has unable to prove that he is in possession of the
suit property, therefore, it is clear finding of fact that plaintiff and defen-
dant no. 2 to 4 are in possession of the suit property. Learned counsel
appearing for appellant could not able to find out that it is perverse or
contrary to the record which warrants interference by this Court.
14. Learned Appellate Court has categorically recorded the findings that the
plaintiff and defendant No.2 to 4 were in possession of the suit property
and on the basis of agreement the defendant does not confer any right
over the suit property, as it is not inconformity with the provisions of Sec-
tion 54 of the Transfer of Property Act as well as Section 17 of the Reg-
istration Act 1908.
15. Submission of learned counsel that the trial Court cannot grant decree
of possession in favour of the plaintiff beyond the pleading made in the
plaint, whereas dispossession of the plaintiff from the suit property by
the defendant No.1 has not been proved. From bare perusal of the
plaint, it is quite vivid that the plaintiff has sought relief of permanent in-
junction against the defendant No. 1 restraining the defendant no.1 from
dispossessing the plaintiff and it has also been prayed that the posses-
sion of the suit property from defendant No.1 be also granted. The con-
tention made by learned counsel for the defendant No.1 that in absence
of any specific plea with regard to possession and affixing the proper
court fee, alternative relief should not have been considered by the trial
Court. The submission made by the learned counsel for the defendant
No.1 cannot be accepted at this stage as no such plea was taken by
him before the trial Court or before the First Appellate Court. Even in the
first appeal the defendant no.1 has made in consist pleading regarding
adverse possession and on the one hand he is claiming title over the
property on the basis of agreement, this has been categorically rejected
by learned first appellate Court by assigning valid reason which is nei-
ther perverse nor against the provision of law.
16. Learned trial Court after appreciating the evidence, material on record
has held that the plaintiff and the defendant No. 2 and 3 are title holder
of the suit property, therefore, defendant No.1 is restrained from interfer-
ing the peaceful possession after handing over the possession of the
suit property.
17. The suit for grant of injunction was very much maintainable in light of the
judgment passed by Hon'ble Supreme Court in case of Padhiyar
Prahladji Chenaji vs Maniben Jagmalbhai (Deceased) 2022 (2) SCJ
468 wherein the Hon'ble Supreme Court has held paragraph 10,11,
and 12 which is as under:-
10. Now, so far as the reliance placed upon the decision of
this Court in the case of Anathula Sudhakar (supra)
by the learned Advocate appearing on behalf of the
original plaintiff in support of his submission that in a
suit for permanent injunction to restrain the defendant
to interfere with the plaintiff's possession, the only
thing the plaintiff will have to establish is that as on
the date of the suit, he was in lawful possession of the
suit property and the defendant has tried to interfere
or disturb his possession is concerned, what is
observed by this Court in paragraph 15 is the "lawful
possession" of the plaintiff. In the present case the
plaintiff, who has failed to get any declaratory relief
and the defendant No.1 is held to be a true and
absolute owner on the basis of the registered sale
deed on payment of full sale consideration thereafter
the plaintiff's possession cannot be said to be "lawful
possession". Therefore, the plaintiff is not entitled to
any permanent injunction against the true owner in
the instant case.
11. From the impugned judgment and order passed by the
High Court, it appears that the High Court has not
properly appreciated the distinction between a
substantive relief and a consequential relief. The High
Court has observed that in the instant case the relief
of permanent injunction can be said to be a
substantive relief, which is clearly an erroneous view.
It is to be noted that the main reliefs sought by the
plaintiff in the suit were cancellation of the sale deed
and declaration and the prayer of permanent
injunction restraining defendant No.1 from disturbing
her possession can be said to be a consequential
relief. Therefore, the title to the property was the basis
of the relief of possession. If that be so, in the present
case, the relief for permanent injunction can be said
to be a consequential relief and not a substantive
relief as observed and held by the High Court.
Therefore, once the plaintiff has failed to get any
substantive relief of cancellation of the sale deed and
failed to get any declaratory relief, and as observed
hereinabove, relief of injunction can be said to be a
consequential relief. Therefore, the prayer for
permanent injunction must fail. In the instant case as
the plaintiff cannot be said to be in lawful possession
of the suit land, i.e., the possession of the plaintiff is
"not legal or authorised by the law", the plaintiff shall
not be entitled to any permanent injunction. 11.1 An
injunction is a consequential relief and in a suit for
declaration with a consequential relief of injunction, it
is not a suit for declaration simpliciter, it is a suit for
declaration with a further relief. Whether the further
relief claimed has, in a particular case as
consequential upon a declaration is adequate must
always depend upon the facts and circumstances of
each case. Where once a suit is held not
maintainable, no relief of injunction can be granted.
Injunction may be granted even against the true
owner of the property, only when the person seeking
the relief is in lawful possession and enjoyment of the
property and also legally entitled to be in possession,
not to disposes him, except in due process of law.
12. Now, so far as the submission on behalf of the
plaintiff that even if the plaintiff failed to get the
declaratory relief and relief for cancellation of
registered sale deed and her suit for the said reliefs
came to be dismissed and the plaintiff is found to be
in possession and therefore, the only remedy
available to the defendant No.1 would be to file a
substantive suit to get back the possession is noticed
only to be rejected outright. It is the contention on
behalf of the plaintiff that once the plaintiff is found to
be in possession, her possession cannot be disturbed
except in due process of law and the defendant No.1
though may be the true owner has to file a
substantive suit for recovery of possession. While
considering the aforesaid submission, the decision of
this Court in the case of Maria Margarida Sequeira
Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5
SCC 370 is required to be referred to. What is meant
by due process of law has been explained by this
court in paragraph 79, which reads as under:-
"79. Due process of law means that nobody
ought to be condemned unheard. The due
process of law means a person in settled
possession will not be dispossessed except by
due process of law. Due process means an
opportunity to the defendant to file pleadings
including written statement and documents
before the court of law.
It does not mean the whole trial. Due process
of law is satisfied the moment rights of the
parties are adjudicated upon by a competent
court." In the said decision, this Court has
approved the following findings of the High
Court of Delhi in Thomas Cook (India) Ltd. Vs.
Hotel Imperial (2006) 88 DRJ 545 :- "28. The
expressions 'due process of law', 'due course
of law' and 'recourse to law' have been
interchangeably used in the decisions referred
to above which say that the settled possession
of even a person in unlawful possession
cannot be disturbed 'forcibly' by the true owner
taking law in his own hands. All these
expressions, however, mean the same thing--
ejectment from settled possession can only be
had by recourse to a court of law.Clearly, 'due
process of law' or 'due course of law', here,
simply mean that a person in settled
possession cannot be ejected without a court
of law having adjudicated upon his rights qua
the true owner.
Now, this 'due process' or 'due course'
condition is satisfied the moment the rights of
the parties are adjudicated upon by a court of
competent jurisdiction. It does not matter who
brought the action to court. It could be the
owner in an action for enforcement of his right
to eject the person in unlawful possession. It
could be the person who is sought to be
ejected, in an action preventing the owner from
ejecting him. Whether the action is for
enforcement of a right (recovery of possession)
or protection of a right (injunction against
dispossession), is not of much consequence.
What is important is that in either event it is an
action before the court and the court
adjudicates upon it. If that is done then, the
'bare minimum' requirement of 'due process' or
'due course' of law would stand satisfied as
recourse to law would have been taken. In this
context, when a party approaches a court
seeking a protective remedy such as an
injunction and it fails in setting up a good case,
can it then say that the other party must now
institute an action in a court of law for enforcing
his rights i.e. for taking back something from
the first party who holds it unlawfully, and, till
such time, the court hearing the injunction
action must grant an injunction anyway? I
would think not. In any event, the 'recourse to
law' stipulation stands satisfied when a judicial
determination is made with regard to the first
party's protective action. Thus, in the present
case, the plaintiff's failure to make out a case
for an injunction does not mean that its
consequent cessation of user of the said two
rooms would have been brought about without
recourse to law." 12.1 Applying the law laid
down by this Court in the aforesaid decision to
the facts of the case on hand and once the
rights of the parties are adjudicated and the
defendant No.1 is held to be the true owner on
the basis of the registered sale deed and on
payment of full sale consideration, it can be
said that due process of law has been followed
and thereafter the plaintiff is not entitled to any
permanent injunction against the true owner.
18. Upon perusal of entire evidence, no substantial question of law requires
to be formulated for hearing of this second appeal. There is concurrent
finding of fact with regard to non-handing possession of the suit prop-
erty. It is a finding of fact which is neither perverse nor contrary to the
record. As such also no question of law requires to be determined by
this Court. The Hon'ble Supreme Court in C. Doddanarayana Reddy
(Dead) by Lrs. & others Vs. C. Jayarama Reddy (dead) by Lrs.& oth-
ers , has held at paragraph 28 as under:-
28. Recently in another judgment reported as
State of Rajasthan v.Shiv Dayal11, it was held
that a concurrent finding of the fact is binding,
unless it is pointed out that it was recorded de
hors the pleadings or it was based on no evi-
dence or based on misreading of the material
on records and documents. The Court held as
under:
"When any concurrent finding of fact is as-
sailed in second appeal, the appellant is enti-
tled to point out that it is bad in law because it
was recorded de hors the pleadings or it was
based on no evidence or it was based on mis-
reading of material documentary evidence or it
was recorded against any provision of law and
lastly, the decision is one which no Judge act-
ing judicially could reasonably have reached.
(see observation made by learned Judge Vi-
vian Bose,J. as His Lordship then was a Judge
of the Nagpur High Court in Rajeshwar Vish-
wanath Mamidwar & Ors. vs. Dashrath
Narayan Chilwelkar & Ors., AIR 1943 Nagpur
1 (2020) 4 SCC 659
117 Para43)."
19. This court cannot proceed to hear a second appeal without there being
any substantial question of law involved in the appeal. Existence of sub-
stantial question of law is the sine-qua-non for the exercise of the juris-
diction under the amended Section 100 of the C.P.C. Learned counsel
appearing for the appellant failed to point out any substantial question of
law which may arise for determination in the case.
20. In view of above, since no substantial question of law arises for determi-
nation in the instant case, this is not a fit case for admission. Conse-
quently, the appeal is dismissed at motion stage itself under the provi-
sions of Order 41 Rule 11 read with Order 42 Rule 1 of CPC. No order
as to costs.
21. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
Santosh
