Dismissed

Nanhey Lal and 2 Others v. Anupa and Another

Allahabad HC31 Jan 2020SAPL/1184/2019

Case brief

AI extract

What is this about?

The Court dismissed the second appeal under Section 100 CPC. Upholding the first appellate court, it held that revenue entries alone did not prove possession of the suit land by appellant-plaintiffs. Consequently, the claim for permanent injunction failed as the alienation of the property by the widow remained unchallenged by proof of possession.

What did the court decide?

The appeal was dismissed; the judgment and decree of the first appellate court were upheld.

Nanhey Lal and 2 Others Vs Anupa and Another — Property and Title | Allahabad HC (2020)

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Court No. - 53

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Case :- SECOND APPEAL No. - 1184 of 2019

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Appellant :- Nanhey Lal And 2 Others Respondent :- Anupa And Another Counsel for Appellant :- Vijay Bahadur Yadav,Jai Singh

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Hon'ble Vivek Agarwal,J.

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Heard Sri D.K. Singh, learned counsel for the appellant.

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This second appeal under section 100 of CPC has been filed by the appellant-plaintiffs being aggrieved by judgment and order dated 12.9.2019 and decree dated 5.10.2019 passed by Additional District Judge, Court No.2, Jaunpur in Civil Appeal No. 05/2008, Lal Ji Vs. Ram Awadh, reversing the judgment and decree passed in O.S. No. 929 of 1991 dated 15.12.2007 by Civil Judge (JD), Shahganj, Jaunpur.

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Appellant's contention is that he filed a suit for permanent injunction against defendant on the ground that one Harkhu had three sons namely Chhabbu, Gokul and Mathura. Gokul died during lifetime of Harkhu leaving his son Ram Awadh, who has instituted this case.

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The dispute is in regard to property of Mathura, S/o Harkhu. Mathura died issue-less leaving his widow Jagwanti, who inherited share in property of Mathura and it is contention of counsel for the appellant that property of Jagwanti is to be devolved upon the legal heirs of Jagwanti as per provisions contained under section 171 read with section 172(2) of U.P.Z.A. 7 L.R. Act, 1950. It is submitted that after death of Jagwanti, a suit was filed by Ram Awadh claiming that being son of Gokul, he is entitled to share in the property of Jagwanti in asmuch as, as per provisions contained in Section 171 (2) (e), he being son of pre-deceased brother Mathura is entitled to share in the property.

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It is also not in dispute that during her life time Jagwanti had executed a sale deed of her share of property in favour of children of Lal Ji S/o Chhabbu i.e. grandsons of Chhabbu. During pendency of the suit when this fact was discovered then suit has been filed by plaintiff Ram Awadh for cancellation of such sale deed which is still pending before the court of competent jurisdiction. It is case of the appellant that since property was joint, therefore, possession of one of them will be treated to be possession of all, as a result of which they claimed their possession over the property of Jagwanti and on the

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strength of such fictional possession claimed relief of permanent injunction.

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When this Court specifically asked that which is the document to show possession of the plaintiff, it is submitted that from the Khasra entries contained in Document No. 77 (Ga), 150 (Ga), 205 (Ga) and 206(Ga) are revenue entries in which name of the plaintiff and the defendant is recorded in the revenue records and on the basis of such documents, the trial court has decreed the suit.

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The Factum of property being joint and partitioned should be proved by the plaintiff. In fact, in their written statement the defendant has taken a specific plea of consolidation of holdings and each of the holder namely Chhabu, Ram Awadh and Mathura getting their distinct share of the property out of the estate of Harkhu.

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First appellate court has reversed the judgment passed by the trial court holding that plaintiffs could not prove their possession on the suit property.

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When specifically asked, counsel for the appellant is at loss of words to explain that how document 77 (Ga), 150(Ga), 205(Ga) and 206(Ga) are proof of possession and not merely recording of names of the plaintiff and the defendant in the revenue records. There is no mention of fact that which of the plaintiff was sowing which of the crop on such land. In absence of specific entry in the revenue records, it cannot be said that plaintiff-appellant had possession over the suit land. Therefore, the first appellate court has rightly appreciated the evidence which has come on record and has held that since plaintiffs are not in possession of suit land and Jagwanti has already alienated the suit land in favour of the grand children of Chhabbu vide registered sale deed of 28.3.1985, plaintiff having failed to prove their possession over the suit land were not entitled to decree of permanent injunction and that has been rightly reversed by the first appellate court.

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I have not been commended to any other material, to take a view contrary to one taken by first appellate court and, therefore, this appeal does not give rise to any substantial questions of law lest one which are mentioned in the memo of appeal. The appeal fails and is dismissed.

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Order Date :- 31.1.2020 S.K.S.

Nanhey Lal and 2 Others v. Anupa and Another

Case brief

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Nanhey Lal and 2 Others v. Anupa and Another

Case brief

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