Smt. Bheekhi Devi vs Manak Lal And Ors
2021 Latest Caselaw 12078 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 120/2017

Smt. Bheekhi Devi W/o Late Shri Radha Mohan, at Present Residents Of Phalodi, Tehsil Phalodi, District Jodhpur.

----Appellant Versus

1. Manak Lal S/o Shri Kanhaiya Lal, Resident Of Chhanganiyon Ki Gali, Tehsil Phalodi, District Jodhpur.

2. Mohan Lal S/o Shri Harchand, Resident Of Village Baap, District Jodhpur.

3. Pukh Raj S/o Shri Harchand, Resident Of Village Baap, District Jodhpur.

4. Ashok Kumar S/o Late Shri Radha Mohan Vyas, At Present Resident Of M.h.b. Colony, Gorai Road, Borivali, Mumbai.

5. Dinesh Kumar S/o Late Shri Radha Mohan Vyas, At Present Resident Of M.h.b. Colony, Gorai Road, Borivali, Mumbai.

6. Mohan Pyari W/o Shri Ram Kishan D/o Late Shri Radha Mohan Vyas, Resident Of 406, Radha Kunj, Near Mataji Ka Temple, Malar, East Mumbai.

7. Bhagwati Devi W/o Shri Satya Narayan, D/o Late Shri Radha Mohan Vyas, Resident Of 604, Tapovan, Near New National Highway, Pathanwadi, Malar, East Mumbai.

8. Manju Lata W/o Shri Ashok Kumar Joshi, D/o Late Shri Radha Mohan Vyas, Resident Of 104 D, Tapovan Deep, Housing Society, Pathanwadi, Malar, East Mumbai.

9. Shakuntla W/o Shri Rajendra Bohra D/o Late Shri Radha Mohan Vyas, Resident Of 104 D, Tapovan Deep, Housing Society, Pathanwadi, Malar, East Mumbai.

                                                                 ----Respondents


For Appellant(s)          :     Mr. Richin Surana.
For Respondent(s)         :     Mr. S.D. Purohit.



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                 Judgment




                                           (2 of 5)              [CSA-120/2017]

03/08/2021

This appeal is directed against the judgment and decree

dated 5.1.2013 passed by Civil Judge (Sr. Division), Phalodi,

District Jodhpur ('the trial court') and judgment and decree dated

16.12.2016 passed by Addl. District Judge, Phalodi, District

Jodhpur ('the first appellate court') whereby, the suit filed by the

appellant seeking permanent injunction has been dismissed and

the appeal filed by the appellant has also been dismissed,

respectively.

The appellant filed a suit inter alia with the averments that

pursuant to a sale deed dated 18.1.1983 (Exhibit-2), the plaintiff

alongwith her children - respondents No.4 to 9, is in possession of

plot of land and that the respondents - defendants were seeking

to dispossess the plaintiff and, therefore, injunction be granted.

The suit was contested by defendant No.1 inter alia disputing

that the plot sought to be claimed by the plaintiff pursuant to the

sale deed dated 18.1.1983, is not the plot, which is in possession

of the defendant. Further averments made in the plaint were

denied and it was claimed that the plot was purchased from

Omprakash and Meghraj, who were having their Salt Industry over

the land and he is in possession of the plot and, therefore, the suit

was liable to dismissed.

Based on the averments of the parties, the trial court framed

eight issues. On behalf of the plaintiff, four witnesses were

examined and two documents were exhibited. On behalf of the

defendants, four witnesses were examined and 28 documents

were exhibited.

After hearing the parties, the trial court came to the

conclusion that the defendants and their predecessors were in

(3 of 5) [CSA-120/2017]

possession of the plot in question, the plaintiff was not in

possession of plot, which is in possession of the defendants and in

absence of a suit seeking declaration, a simple suit for possession

was not maintainable.

The trial court framed an issue regarding the fact as to

whether the patta and the transfer in favour of the defendants in

view of the fact that there was already a patta in favour of the

plaintiff, the same was void and answered the same by indicating

that as no suit for declaration has been filed, no such finding can

be recorded and based on its findings, rejected the suit.

Feeling aggrieved, the appellant filed first appeal.

The First Appellate Court, after hearing the parties, came to

a specific conclusion that as the plaintiff is not in possession of the

property, the trial court did not commit any error in rejecting the

plaint.

On issue no.2, the first appellate court again came to the

conclusion that as the patta (Exhibit-1) produced by the appellant

was not registered and for other reasons, which have been

indicated, it cannot be said that the patta in favour of the

defendants is automatically void and consequently, dismissed the

appeal.

Learned counsel for the appellant made submissions that the

two courts below were not justified in dismissing the suit and the

appeal. Submissions have been made that the appellant is

aggrieved by decision on issue no.2, wherein, the two courts

below have come to the conclusion that the patta issued in favour

of the predecessor of defendants and transfer in their favour, were

not void in absence of seeking a declaration.

(4 of 5) [CSA-120/2017]

Further submissions have been made that though findings of

fact have been recorded regarding the possession of the plaintiff,

the same is of no consequence, insofar as, the finding on issue

no.2 is concerned and, therefore, the finding on issue no.2 give

rise to a substantial question of law.

Learned counsel for the respondents - defendants supported

the judgments impugned.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The two courts below after thoroughly scrutinizing the

evidence led by the parties came to a categorical conclusion that

the plaintiff in her cross-examination specifically admitted that she

was never in possession of the plot and the same always remained

in possession of others, she was not aware of the boundaries of

the plot and that her husband had raised certain construction and

that she was unaware as to in which colony the plot comes i.e.

Bhairav Colony, Shashtri Colony or in Kisan Colony, which clearly

shows that the plaintiff was not in possession of the suit plot.

Further, the courts below have also considered the fact that

the plots in question were in possession of predecessor of

defendants and the defendants based on documentary evidence

i.e. electricity bills and water bills etc. In view thereof, apparently,

a simple suit for injunction filed by the appellant itself was not

maintainable as laid down by Hon'ble Supreme Court in the case

of Anathula Sudhakar v. P. Buchi Reddy (Dead): (2008) 4 SCC

594 and as such the findings recorded by the two courts below

pertaining to the possession as well as the fact that a simple suit

for injunction was not maintainable, cannot be faulted.

(5 of 5) [CSA-120/2017]

So far as the finding recorded on issue no.2 is concerned,

the issue no.2 essentially was academic, inasmuch as, the trial

court framed the issue based on the assumption that if the patta

in favour of the plaintiff was valid, the subsequent patta in favour

of the defendants would be void.

For recording a finding on the said abstract issue, nothing

was required to be determined as answer to the said question is

inter alia that in presence of a title document, if the same

property is transferred by someone else, the same would be void.

However, in the circumstances of the case, wherein, no relief was

sought by the plaintiff seeking to establish her title qua the plot in

question and negating the right of the defendants, such a finding

was not required to be recorded by the courts below.

In view of the above discussion, the present appeal does not

give rise to any substantial question of law. There is no substance

in the appeal. The same is, therefore, dismissed.

(ARUN BHANSALI),J 25-Sumit/-

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