Sunil @ Anil Baran Thakur & Ors vs Tulsi Thakur & Ors. ... Opp. Parties
2024 Latest Caselaw 1038 Jhar

Jharkhand High Court

Sunil @ Anil Baran Thakur & Ors vs Tulsi Thakur & Ors. ... Opp. Parties on 2 February, 2024

Author: S.N. Pathak

Bench: S.N.Pathak

              IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                     Civil Revision No. 60 of 2018

     Sunil @ Anil Baran Thakur & Ors.                                          ...        Petitioners

                                             Vs.
     Tulsi Thakur & Ors.                                              ...             Opp. Parties

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CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioners : Mr. Vibhor Mayank, Advocate For the O.Ps. :

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08/ 02.02.2024 It has been submitted by learned counsel for the petitioners/defendants that suit is barred under Sections 34 and 38 of the Specific Relief Act and also injunction preferred by the plaintiff in the court below is not maintainable and as such the defendants have preferred application under Order VII Rule 11 of the Code of Civil Procedure, 1908 for rejection of the plaint. However, the court below has rejected the claim of the petitioners/defendants on the ground that it has been filed at a belated stage after filing of written statement on 19.01.2008. It has also been observed therein that the suit is maintainable as the plaintiff did not claim for any declaration of right and title on the suit land as in the facts and circumstances of the case the suit land is a path way, therefore they have claimed for permanent injunction in relation to schedule 'B' of plaintiff . Learned counsel places heavy reliance on the judgment of Hon'ble Apex Court in case of T.V. Ramakrishna Reddy Vs. M. Mallappa & Anr. reported in (2021) 13 SCC 135 paras-25 and 26 which is quoted hereunder:-

25..It will also be relevant to refer to the following observations of this Court in Jharkhand State Housing Board V. Didar Singh: (SCC p. 694, para-11)

"11.It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases the plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant relief of raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, the plaintiff cannot maintain a suit for bare injunction."

26..In the facts of the present case, it cannot be said at this stage that the dispute raised by Defendant 2 with regard to title is not genuine nor can it be said that the title of the appellant-plaintiff over the suit property is free from cloud. The issue with regard to title can be decided only after the full-fledged trial on the basis of the evidence that would be led by the parties in support of their rival claims.

From perusal of the order passed by the court below, it appears that

prima facie case is made out and balance of convenience lies in favour of the petitioners/defendants.

Let notices be issued upon opposite parties under registered cover with A/D as well as under ordinary process, for which, requisites etc. must be filed by the petitioners within three weeks.

Put up this case thereafter.

(Dr. S.N. Pathak, J.) Rohit/-