Bimla Devi ...... Defendant/ vs Rekh Ram Goswami
2023 Latest Caselaw 3534 Jhar

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       M.A. No. 108 of 2022
    Bimla Devi                              ...... Defendant/Appellant
                                   Versus
    1. Rekh Ram Goswami
    2. Yogendra Goswami
    3. Manoj Goswami
    4. Girish Goswami
    5. Nibash Goswami
    6. Satya Narayan Goswami
    7. Ranjeet Kumar Goswami
    8. Rajendra Goswami
    9. Sanjay Goswami
    10. Dinesh Goswami
    11. Santosh Goswami                             ...... Plaintiffs/ Respondents
    12. Manoj Puri
    13. Satrughan Puri
    14. Shyam Puri
    15. Anant Puri
    16. Bimla Debya                     ...... Defendants/Proforma Respondents
          Suit Value- Rs. 27,50,000/-
          Appeal Value - Rs. 27,50,000/-

    For the Appellant : Mr. Arvind Kumar Choudhary, Advocate
    For the Respondent : None
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                                 PRESENT
          HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                                   -----
                                 JUDGMENT

C.A.V. On 06.09.2023 Pronounced On: 16 .09.2023

1. Heard learned counsel for the appellant.

2. As per office report dated 11.08.2023 notice has been validly served to respondent nos. 1 to 16 but no one turn up on behalf of the respondents.

3. Present miscellaneous appeal has been preferred for setting aside the order dated 16.04.2022 passed by Sri Sanjay Kumar Singh No. III, learned Civil

Judge (Senior Division)-III, Dhanbad, in Title Suit No. 311 of 2013 (herein after called as impugned order) whereby and whereunder the learned Civil Judge Senior Division III, Dhanbad has rejected the miscellaneous Civil application No. 611 of 2018 dated 08.10.2018 filed by the appellant/defendant under order XXXIX Rule 1 & 2 read with Section 151 of the Code of Civil Procedure.

4. The learned counsel for the appellant has submitted that above mentioned title suit is pending at the stage of plaintiffs evidence, but the plaintiffs are adamant to dispossess the defendant from the suit land and also indulged in forcefully raising construction over the suit land in respect of which the appellant had made complaint before the local authorities. It is further submitted that the plaintiffs have executed several sale deeds in favour of different persons who are also trying to take their possession by constructing boundary wall over the land in question and upon objection by the defendant/appellant they are using criminal force against the appellant and her family members (annexure 1 series of supplementary affidavit dated 21.03.2023 are the sale deeds executed during pendency of the suit). It is further submitted that appellant is a poor lady having good primafacie case and balance of convenience is also in her favour and if she will be dispossessed from the suit property through illegal act of the respondents and alienation of the property she will sustain irreparable loss and it will also create multiplicity of litigation/proceedings.

Factual Background of the case

5. According to plaintiffs, lands appertaining to Khata No. 16 as fully described to the scheduled of the plaint, situated in Mouza Kusmatand, Dhanbad stood recorded in the name of grand-father of the plaintiffs, namely, Muchi Ram Goswami in Cadastral Survey Record of rights. After vesting of Jamindari the name of said recorded raiyat was mutated in the Saresta of the State of Bihar and Jamawandi was also opened in his name and has been paying rent continuously under Thoka no. 14 to the State. It is further alleged that Muchi Ram Goswami died in the year 1954 leaving behind his only son Hari Pada Goswami who inherited the suit property. For his legal necessity, he sold few plots of land of Khata No. 16 to some

intending purchasers. After death of Hari Pada Goswami his four sons and one daughter came into peaceful possession of the joint ancestoral property and due to necessity they have also sold some properties to various purchasers. It is alleged that plaintiffs are descendants of recorded raiyat and enjoying the suit property. Further case of the plaintiffs is that one Bhutesh Sonar, husband of defendant no.1, was land broker who in the month of May 2011 in connivance with few members of Puri family of the village Rangamati fraudulently got executed power of attorney in respect of land appertaining to Khata No. 131, plot nos. 910, 911 & 912 of village Jealgora but lands of Khata No. 16 in the power of attorney mischievously mention the description of which belonged and recorded in the name of plaintiff's grandfather Muchi Ram Goswami. It is alleged that said Bhutesh Sonar created a false story that Muchi Ram Goswami "recorded raiyat" died leaving behind him one son Hari Goswami and one daughter Chapli Devi and to fulfill his evil desire said Bhutesh Sonar claimed half share of said Chapli Devi in the Khatiyani property of the recorded raiyat and also on the strength of forged power of attorney transferred some lands in the year 2011. Although the said lands were earlier sold by the descendants of the Munchi Ram Goswami to other persons who were in possession and also mutated their name by Circle officer. The proceeding under Section 144 Cr.p.c. was also drawn wherein the claim of the defendants was found false and fabricated. The defendants have no concern with the family relation of the plaintiffs. The plaintiffs have claimed a decree for declaration against the defendants declaring that the sale deed no. 186 dated, 25.08.2011executed by defendant nos. 2 to 5 through their alleged attorney holder Bhutesh Sonar in favour of his own wife defendant no. 1, is null and void and inoperative documents and the same is not binding upon the plaintiffs.

6. On the other hand, case of defendant No. 1 is that recorded raiyat of suit property was Muchi Ram Goswami who died in the year 1960 leaving behind him one son Hari Goswami and one daughter Chapli Devi who jointly inherited the property left by their father. As per Hindu Succession Act, 1956, half share of the property was inherited by daughter, Chapli Devi

who was married with one Ram Puri Goswami in village Rangadih. Chapli Devi died leaving behind two sons namely, Bishu Puri and Banarsi Puri, who inherited half share left by their mother Chapli Devi. Real fact is that Chapli Devi while in joint possession with her brother Hari Goswami died leaving behind her two sons namely, Bishu Puri and Banarsi Puri who succeeded her shares in the property left by their maternal grandfather (Nana), namely, Muchi Ram Goswami. Later on Bishu @ Biswanath Puri died leaving behind four sons who are defendant nos. 2 to 5, who jointly inherited along with Bimla Debya "defendant no.6", half interest left by Chapli Devi and a Title Partition Suit No. 210 of 2013 has been filed by Bimla Devi (petitioner) against the present plaintiffs and defendants along with the proforma Respondents, hence, in order to grab the whole suit property present case has been maliciously filed by the plaintiffs. It is alleged that defendant nos. 2 to 6 have validly sold half share in the suit property through registered sale deed no. 186, dated 25.08.2011 through their power of attorney holder Bhutesh Sonar and purchaser Bimla Devi (defendant no.1) came into peaceful possession thereof and has instituted the aforesaid partition suit. Hence, there is no cause of action to the plaintiffs to institute this case, which is fit to be dismissed with exemplary cost.

7. Defendants No. 2 to 6, who are vendors of defendant No. 1 have in their written statement at para 6 categorically admitted that the husband of defendant no. 1 has duped them and in place of lands of Khata No. 131 Plot No. 910, 911 & 912 mentioned the lands of Khata No. 16 of plaintiffs in the Power of Attorney and sold the same in the name of his wife (Defendant No. 1). These defendants have also supported the case of plaintiffs.

8. During pendency of the aforesaid title suit filed by the plaintiffs/ the Respondent No.1/Defendant no.1 at the stage of evidence of the plaintiffs/Defendant No. 1 has filed an application under Order XXXIX Rule 1 and 2 read with Section 151 of the CPC for temporary injunction. The main allegation against the plaintiffs is that they along with anti-social elements are adamant to take forceful possession over the suit property and

also indulge in alienation of disputed property to other persons making further complication in the suit. Defendant No.1 has good primafacie case which will succeed on merits and transfer of the suit land or any portion thereof, shall cause irreparable loss and injury to the defendant. Balance of convenience also lies in favour of defendant. Therefore, temporary injunction may be granted restraining the plaintiffs or their agents and servants, etc in interfering with or disturbing possession and enjoyment of defendant over the suit scheduled land and from changing the nature and character of the suit property in any manner during the pendency of the suit.

9. Plaintiffs/ Respondents have filed rejoinder against above petition stating interalia that the suit scheduled properties are in custody of various purchasers, who have purchased the scheduled land about 40-50 years ago and there are number of houses of the purchasers, who have purchased from the ancestors of the plaintiffs and some vacant portion are also in possession of plaintiffs. Admittedly, defendant is not in possession of any portion of the suit property, and has raised a false claim on the basis of purchase from her husband through power of attorney executed by defendants No. 1 to 4 without any right title and interest in the property. Partition suit filed by defendant No. 1/ Petitioner is also pending. Therefore, there is no primafacie case of defendant. Balance of convenience is also in favour of plaintiffs and since there are several purchasers over the suit property, who are in peaceful possession, who shall be disturbed if any injunction order is passed, hence, balance of convenience is also not in favour of defendant and no irreparable injury or loss will be caused in denying the temporary injunction to the defendant.

10.The learned court below after considering the arguments of both parties in the light of factual background of the case and perusal of the report of survey knowing pleader commissioner dated 26.05.2019, recorded findings that "over the suit land there is restaurant, motor garage, houses and buildings and office of the plaintiffs and also came to conclusion that there is no strong primafacie case of defendant/applicant and balance of convenience is also not tilting in favour of defendant and no irreparable injury will cause to the defendant/petitioner, hence, declined to grant

temporary injunction as prayed, but also observed that if there is any change in the nature and character of suit property in any manner during pendency of the suit, the same will be subject to the final result of the suit."

11. I have given anxious consideration to overall aspects of the case as discussed above alongwith impugned order and find that the vendors of petitioners themselves negated the claim of the valid purchase of disputed property and possession thereof by the petitioner, as such, the learned court below has properly appreciated all aspects of the case and has recorded reasoned findings which suffers from no illegality or infirmity or any jurisdictional error or impropriety calling for any interference by way of this appeal, which has no merits, hence, dismissed at present stage. There shall be no orders as to cost.

(Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi R.K/-