Majeed Khan Dead Through His Lrs ... vs Rajesh Kumar Jaiswani And Anr
2022 Latest Caselaw 4467 Chatt

                                                                 NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                 Second Appeal No. 132 of 2014

    Majeed Khan (died) through his Legal Representatives.

  1. Mehrunnisha, aged about- 60 Yrs, W/o Late Majeed Khan, R/o
     Near Jai Stambh Chowk, Talapara, Bilaspur, District Bilaspur,
     Chhattisgarh.

  2. Farima Bi, D/o Late Majeed Khan, aged about 37 Years, R/o
     Near Jai Stambh Chowk, House Of Anoop Sweeper, Talapara,
     Bilaspur, District Bilaspur, Chhattisgarh.

  3. Johra Bi, D/o Late Majeed Khan, aged about 35 years, R/o
     Sonari, Kumharpara, M.D. Basti, House No. 989, Jairodpur
     Tata (Jamshedpur Tata), District : Jamshedpur, Jharkhand.

                                                       ---- Appellants

                               Versus

  1. Rajesh Kumar Jaiswani, S/o Sajan Das Jaiswani, aged about
     24 Years, R/o Rishi Colony behind the house of Dr. Ladikar,
     Bilaspur, District. Bilaspur, Chhattisgarh.

  2. Murari Lal Gupta, S/o Durga Prasad Gupta, aged about 34
     years, R/o Opp. Dharam Hospital, Sadar Bazar, Bilaspur,
     District : Bilaspur, Chhattisgarh.

                                                     ---- Respondents

___________________________________________________________________
     For Appellants             : Mr. Ravindra Agrawal, Advocate.
     For Respondents            : Not noticed.


           Hon'ble Shri Justice Arvind Singh Chandel

                        Judgment On Board

14/07/2022

  1. Heard on admission and formulation of substantial question of
     law in this second appeal preferred by the appellants
     herein/plaintiffs against the impugned judgment and decree
     dated 31.10.2013 passed by learned First Additional District
     Judge, Bilaspur (C.G.) in Civil Appeal No.27A/2010 arising out
     of judgment and decree dated 23.01.2009 passed by learned
     Third Civil Judge Class-II, Bilaspur in Civil Suit No.19A/2006
     by which the trial Court has dismissed the suit of the plaintiffs.
 2.   Facts

of the case are that the Appellants herein/Plaintiffs have filed a Civil Suit for permanent injunction against the Respondents/Defendants for restraining the Defendants from interfering in the peaceful possession of the suit property situated at Link Road, Bilaspur (C.G.). It was pleaded that husband of Plaintiff No.1 and Father of Plaintiffs No.2 & 3 namely Majeed Khan had purchased the suit property total area 119 Sq.Ft. from Chhedi Lal Jajodia through registered sale deed dated 31.07.1996. During his lifetime, he was in possession of the suit land and after his death his legal heirs are in possession of the land. It was further pleaded that on 09.07.1996, Respondent No.2 has got executed an agreement from Majeed Khan to sell the suit land on consideration amount of Rs.1,05,000/- and Rs.25,000/- has been given as advance money. After 2-3 months, on the assurance given by Respondent No.2 that he has entered into contract to sell the half portion of western side of the land to Respondent No.1 and the consideration amount will be paid after two days, he executed the sale deed on 29.10.1996 in favour of Respondent No.1. Respondent No.2 assured that the other half portion of the land will also be sold as soon as the purchaser agrees. The remaining consideration amount of Rs.27,500/- of the half portion of the land has not been given to the seller. The purchaser had tried to possess the suit land forcefully on 16.11.1996 then the husband of Appellant No.1 has made a complaint before the concerned Police Station, thereafter, the civil suit has been filed.

3. Respondent/Defendant No.1 in his written statement pleaded that he purchased the land from Majeed Khan on 29.10.1996 after the payment of full consideration amount and he is in possession of the suit land thereof. The Plaintiffs were not in possession of the suit land. In revenue records also, his name is duly mutated.

4. Respondent/Defendant No.2 has adopted the written statement filed by Respondent/Defendant No.1.

5. After hearing of the parties and recording of evidence, the trial Court has dismissed the suit of the Plaintiffs. The First Appeal filed by the Appellants has also been dismissed by the lower Appellate Court as mentioned in paragraph one of this judgment. Hence, this Second Appeal.

6. Mr. Ravindra Agrawal, learned Counsel appearing for the Appellants herein/Plaintiffs submits that both the Courts below should have considered that the possession of the suit property has not been delivered to Respondent No.1 and he tried to obtained forceful possession which can not be said to be delivery of possession. Since, the full consideration amount has not been paid, therefore, the Plaintiffs are entitled to retain possession of the suit land and they are also entitled for the decree of permanent injunction. The judgments and decree passed by both the Courts below are erroneous and liable to be set-aside.

7. I have heard learned counsel appearing for the Appellants herein/Plaintiffs and went through the record with utmost circumspection.

8. It was found by the trial Court that the original Plaintiff Majeed Khan was not produced himself for recording his evidence until he died i.e. 10.03.2007. Appellant herein/Plaintiff No.1 Mehrunnisha admitted the fact that after three months of purchasing the suit property, her husband Majeed Khan sold the suit property to Defendant No.1 Rajesh Kumar Jaiswani through registered sale deed Ex.D-2. On perusal of Ex.D-2, it is mentioned therein that Majeed Khan has already obtained entire consideration amount of Rs. 52,500/-. There is no documentary evidence available on record on the basis of which it can be proved that any part of the consideration was left, therefore, the Courts below rightly arrived on the conclusion that the said registered sale deed was executed after the payment of full consideration amount i.e. Rs.52,500/-.

9. The Appellants herein/Plaintiffs are unable to produce any evidence on record on the basis of which it can be proved that they were in possession of the suit property. Whereas, it is mentioned in sale deed Ex.-D-2 that after obtaining consideration amount of Rs.52,500/-, the possession of the suit property was handed over to purchaser Rajesh Kumar Jaiswani, therefore, both the Courts below rightly arrived on the conclusion that the suit property is in the possession of Respondent No.1 herein/Defendant No.1. The trial Court as well as the lower Appellate Court vide due and proper appreciation of the parties arrived on this conclusion.

10. The above concurrent finding of both the Courts below are finding based on material available on record, which is neither perverse nor contrary to the record and the appeal does not involves any substantial question of law.

11. Consequently, I do not find any infirmity in the findings so recorded by the Courts below. It therefore deserves to be and are hereby affirmed.

12. The second appeal deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).

Sd/-

(Arvind Singh Chandel) Judge Shubham