Uma Gupta and 4 Others Vs Paras Jain and 5 Others

Court No. - 38

Case :- FIRST APPEAL FROM ORDER No. - 575 of 2020

Appellant :- Uma Gupta And 4 Others Respondent :- Paras Jain And 5 Others Counsel for Appellant :- Sushil Kumar Shukla Counsel for Respondent :- Santosh Kumar Srivastava,Alka Srivastava,Prateek Kumar

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Hon'ble Vivek Agarwal,J.

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Heard Sri Sushil Kumar Shukla, counsel for the appellants and Sri Pramod Jain, who is a Senior Advocate is not assisted by assisting counsel and he submits that assisting counsel Sri Prateek Kumar is in court no.36.

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At this stage, Sri Prateek Kumar, Advocate appears and submits that he is assisting Sri Jain, learned Senior Advocate.

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Sri Sushil Kumar Shukla, counsel for the appellants submits that this appeal has been filed being aggrieved of order dated 13.12.2019 passed by learned Civil Judge, Sr. Division, Fast Track Court/A.C.J.M., Baghpat whereby learned Civil Judge has allowed an application under Order 39 Rule 1 and 2 C.P.C. filed by the plaintiff against the defendant. It is submitted by Sri Shukla that learned trial court has erred in accepting the submission of the plaintiff that he is in peaceful possession of the suit property on the basis of certain receipts issued by Nagar Palika Parishad which were filed by the plaintiff as document nos.13-Ka and 14-Ga along with the plaint. It is further submitted that plaintiff had placed reliance on document nos.15-Ga(1) and 16-Ka(1) receipts for payment for property tax for the year 2017-18 and, therefore, merely on the basis of such receipts showing payment of certain municipal taxes, possession of the plaintiff could not have been accepted by the trial court and, therefore, trial court erred in allowing the

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application under Order 39 Rule 1 and 2 C.P.C.

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On the other hand, Sri Jain, learned counsel for the respondents submits that defendant-appellant has himself admitted peaceful possession of the plaintiff who has been arrayed as respondent nos.1 to 5 in this appeal and in para-5 of the affidavit available on page-19 and 20 of this appeal.

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It is further submitted that plaintiff has proved his registered sale deed dated 15.09.2016 in regard to the suit property and appellants never disputed such sale deed or filed any suit for cancellation of such registered sale deed.

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Sri Shukla, at this stage, submits that para-5 in his affidavit on page-20 of the paper book has been mis-interpreted by the learned counsel for the respondents, inasmuch as, this averment is in regard to the respondents who were arrayed before the learned trial court i.e. the present appellants and not in regard to the plaintiffs.

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However, when learned counsel for the appellants is requested to point out as to what steps were taken by the defendant after rejection of their application for appointment of commission by the learned trial court vide order dated 17.09.2019, he only submits that he has filed some objections but is not in a position to give any categorical reply.

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When learned counsel for the appellant is asked as to whether he has filed copy of the registered sale deed along with the memo of appeal on the basis of which plaintiff has put forth his case before the learned Trial Court, learned counsel for the appellant fairly submits that he has not filed copy of such sale deed. He is also not in a position to refute as to whether any suit for cancellation of sale deed dated 15.09.2016 has not been

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filed on which learned trial court has placed reliance as was allegedly executed in favour of the plaintiff by the defendant nos.1 to 4 in the suit.

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In view of such facts, when sale deed could not be disputed, application for appointment of Commissioner to ascertain the factum of actual possession has been dismissed by the trial court and no further proceedings have culminated from such order of dismissal of application for appointment of Commissioner, then contention of learned counsel for the appellants that merely on the basis of certain municipal receipts, possession of the plaintiff has been accepted and application under Order 39 Rule 1 and 2 C.P.C. has been allowed, does not appear attractive to dispute possession of the plaintiff.

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In fact, appellant has failed to make out any case lest on the proposed substantial questions of law as are available on page 9 and 10 of the memo of appeal and, therefore, appeal being devoid of merit deserves to be dismissed and is dismissed .

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Order Date :- 6.7.2020 Ashutosh

Uma Gupta and 4 Others v. Paras Jain and 5 Others

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Uma Gupta and 4 Others v. Paras Jain and 5 Others

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