Allowed

Suresh Chand Jain v. Rajendra Prasad Jain and Another

Chhattisgarh HC26 Nov 2020SA/260/2010

Case brief

AI extract

What is this about?

In clubbed second appeals regarding a dispute over land in Pendra, the High Court restored the trial Court decree granting declaration of title and permanent injunction. The Court held the plaintiff was in possession based on revenue records and admission, correcting the first appellate Court's erroneous finding.

What did the court decide?

Second Appeal No.292/2010 allowed; Second Appeal No.260/2010 dismissed. Trial Court decree for permanent injunction restored. First appellate finding on possession set aside.

Suresh Chand Jain Vs Rajendra Prasad Jain and Another — Property and Title | Chhattisgarh HC (2020)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

Judgment reserved on :29.09.2020

¶5

Judgment delivered on :26.11.2020

¶6

Second Appeal No.292 of 2010

¶7

Rajendra Prasad Jain, S/o Late Roopchand Jain, aged
about 80 years, R/o Village Pendra, Police Station
Pendra, Tahsil Pendraroad, District Bilaspur (CG)

¶8

---- Appellant/Plaintiff

¶9

Versus

¶10

1. Sureshchand Jain, S/o Late Roopchand Jain, aged about 80 years, R/o Village Pendra, Police Station Pendra, Tahsil Pendraroad, District Bilaspur (CG)

¶11

2. State of Chhattisgarh, Through: the Collector, Bilaspur (CG)

¶12

---- Respondents/Defendants

¶13

And

¶14

Second Appeal No.260 of 2010

¶15

Sureshchand Jain S/o Late Roopchand Jain, aged about
80 years, R/o village Pendra, Police Station Pendra,
Tahsil-Pendraroad, District Bilaspur (CG)

¶16

---- Appellant/Defendant

¶17

Versus

¶18

1. Rajendra Prasad Jain, S/o late Roopchand Jain, aged about 80 years, R/o village Pendra, Police Station Pendra, Tahsil Pendraroad, Distrit Bilaspur (CG)

¶19

---- Plaintiff

¶20

2. State of Chhattisgarh, through Collector, Bilaspur (CG)

¶21

---- Respondents

¶22

Mr.Ashok Soni, Advocate for the Appellant/Plaintiff in SA
No.292/2010 and Advocate for Respondent No.1/Plaintiff in
SA NO.260/2010

¶23

Dr.N.K.Shukla, Senior Advocate with Mr.Achyut Tiwari,
Advocate for the Appellant/Defendant in SA No.260/2010 and
Advocate for Respondent No.1/Defendant in SA No.292/2010
Dr.Veena Nair, Dy.A.G.for respondent No.2/State

¶24

¶25

Hon'ble Shri Justice Sanjay K. Agrawal

¶26

C.A.V. Judgment

¶27

1. Second Appeal No.292 of 2010 preferred by the

¶28

appellant/plaintiff was admitted for hearing on
27.8.2020 by formulating the following substantial
question of law:-

¶29

“Whether the first appellate Court is
justified in setting aside the decree for
permanent injunction granted in favour of the
plaintiff by holding that the plaintiff is
not in possession of the suit property, by
recording a finding which is perverse and
contrary to the record ?”

¶30

2. Second Appeal No.260 of 2010 preferred by the
appellant/defendant was admitted for hearing on
30.8.2010 by formulating the following substantial
question of law:-

¶31

“Whether the lower appellate Court has
committed illegality in decreeing the suit
for declaration of the title of suit property
without consequential relief of possession ?”

¶32

[For the sake of convenience, the parties would
be referred hereinafter as per their status
shown and nomenclature in the suit before the
trial Court].

¶33

3. Since both the second appeals have arisen from
common/impugned judgment and decree passed by the

¶34

¶35

first appellate Court, therefore, they are clubbed
and heard together and being disposed of by this
common judgment.

¶36

4. The suit property situated at village Pendra, Tahsil Pendraroad bearing Khasra No.13 area 4.735 hectares is the subject-matter of dispute between the parties. It is the case of the plaintiff that his father late Shri Roopchand Jain purchased the suit land in his name as he was minor at that time and in family partition in the year 1954, it was allotted to him and since then, he is in possession of the suit land being title-holder, but the defendant tried to take forcible possession over the suit land necessitated him to seek declaration of title and permanent injunction restraining the defendant from interfering with his peaceful possession.

¶37

5. Resisting the suit, the defendant filed his written statement and denied the averments made in the plaint stating inter-alia that the suit property was the property allotted to him on partition in the year 1954 and since then, he is in possession over the suit land, he has also installed electricity connection on the suit land. Apart from opposing the suit, he also filed counter-claim stating inter-alia that he is in exclusive possession over the suit land

¶38

¶39

as it was given to him on oral partition and as such,
he is entitled for declaration of title and permanent
injunction.

¶40

6. The trial Court upon appreciation of oral and
documentary evidence available on record, by its
judgment and decree dated 16.3.2010, decreed the suit
of the plaintiff holding that he is title-holder and
also in possession of the suit land and thereby
restrained the defendant from interfering with his
peaceful possession. On appeal being preferred by the
defendant, the first appellate Court maintained the
decree for declaration of title, but set-aside the
decree for permanent injunction holding that the
defendant is in possession over the suit land,
against which, the plaintiff as well as the defendant
both have preferred two second appeals as stated
hereinabove, in which separate substantial questions
of law have been formulated, which have been set-out
in the opening paragraph of this judgment for sake of
completeness.

¶41

7. Mr.AshokSoni,learnedcounselforthe
appellant/plaintiff in Second Appeal No.292 of 2010,
would submit that the first appellate Court went
wrong in holding that the plaintiff is not in
possession of the suit land, therefore, he is not

¶42

¶43

entitled for decree of permanent injunction, by
recording a finding which is perverse to the record,
as such, the judgment and decree of the first
appellate Court deserves to be set aside and that of
the trial Court be restored and thereby the
defendant's second appeal be also dismissed.

¶44

8. Dr.N.K.Shukla, learned Senior Counsel with Mr.Achyut
Tiwari, learned counsel for appellant/defendant in
Second Appeal No.260 of 2010, would submit that there
is overwhelming evidence available on record to
conclude that only and only the defendant is in
exclusive possession of the suit land and it is not
the plaintiff who is in possession of the suit land,
therefore, if the plaintiff is not in possession of
the suit land, he ought to have sought consequential
relief of recovery of possession, which he has
admittedly not sought, therefore, by virtue of
proviso to Section 34 of the Specific Relief Act,
1963 (hereinafter called as “Act of 1963”), bare suit
for declaration of title would not be maintainable
and therefore, the judgment and decree of the trial
Court only granting decree for declaration of title
be set-aside by granting this second appeal and
consequently, decree for declaration of title granted
in favour of the plaintiff be also set aside.

¶45

¶46

9. I have heard learned counsel for the parties and
considered their rival submissions made hereinabove
and also went through the records with utmost
circumspection.

¶47

10.The suit filed by plaintiff-Rajendra Prasad Jain
was decreed by the trial Court holding that he is
title-holder of the suit land and also in possession
of the suit land restraining the defendant from
interfering with his peaceful possession. On appeal
being preferred by defendant-Sureshchand Jain, the
first appellate Court maintained the decree for
declaration of title, but set-aside the decree for
permanent injunction holding that the defendant is in
possession over the suit land, as such, in order to
answer two second appeals, the outcome of the appeals

¶48

are dependent upon the fact as to who is in
possession of the suit land on the date of
institution of the suit. If the plaintiff is not
found in possession of the suit land, then the
plaintiff's appeal has to be dismissed and the
defendant's appeal has to be allowed in view of
proviso to Section 34 of the Act of 1963.

¶49

11. It is undisputed rather admitted fact on record that the suit property was purchased by father of the plaintiff and defendant No.1 late Shri Roopchand Jain

¶50

¶51

in the name of Rajendra Prasad and whose name
continued to be recorded in revenue records. Document
Ex.D-16 copy of rin pustika clearly shows that name
of the plaintiff has been recorded in revenue records
as Bhumiswami of the suit land as the said document
is issued under the provisions of the Chhattisgarh
Land Revenue Code. Likewise, the fact of partition
between them has also been admitted by the parties.
Rajendra Prasad (PW-1) was cross-examined on behalf
of the defendant. In para-9 of his cross-examination,
plaintiff-Rajendra Prasad has clearly stated that he
is cultivating the suit land from the year 1952-63
either by himself or through adhiyadar. He has also
stated that in cross-examination that the suit land
and other properties were subjected to partition and
3-4 years after the partition he is cultivating the
suit land. He has also stated that in his cross-
examination that though for sake of convenience the
electricity meter in his land has been installed in
the name of his brother i.e. defendant Sureshchand
Jain, but electricity bill of that meter is paid by
him regularly and he has also stated that property
tax in Nagar Panchayat is paid by him. Ex.D-15 is the
detailed complaint made by the defendant to the Sub-
Divisional Officer, Pendra Road on 18.7.2006, in

¶52

¶53

which he has stated that on 1.7.2006 the plaintiff
and his persons tried to dispossess him from the suit
land and he was also requisitioned in the police
station at the instance of the plaintiff and he is in
possession over the suit land for last 53 years, but
he only prayed for entering his name in revenue
records with regard to the suit land in complaint
(Ex.D-15).

¶54

12. The instant suit was filed by the plaintiff on 5.7.2006 and the defendant filed his written statement and counter-claim on 30.7.2007. It is quite unnatural that if a person who has been threatened to be dispossessed from such a huge landed property will not make either FIR nor file a suit and only in a suit filed by his opponent/plaintiff, would file counter-claim after a period of one year. Likewise, the defendant claimed to be in possession over the suit land for last 53 years, though number of exhibits from Exs.D-1 to D-44 have been filed, but no document particularly khasra entry showing his possession over the suit land has been filed, whereas the plaintiff has filed the documents Exs.P-1 and P-2 copy of khasra panchashala in which he has been shown to be possession-holder of the suit land, as such, the trial Court has rightly held that the plaintiff's

¶55

¶56

name has been recorded in revenue records vide Exs.
P-1 and P-2 and rin pustika has also been issued in
his name, which has been filed by the defendant vide
Ex.D-16 and despite report dated 18.7.2006 the
defendant did not take any step either to get his
name corrected in revenue records or to take any step
to file suit despite averring that his possession was
tried to be interfered with by the plaintiff and in a
suit filed by the plaintiff, he has filed counter-
claim for declaration of title and permanent
injunction, as such, the trial Court has taken a
reasonable view of the matter. However, merely on the
basis of electricity connection and payment of
property tax which the plaintiff has refuted by
saying that though the name of the defendant is
recorded, yet he is paying electricity bill and
property tax to Nagar Panchayat as in Exs.D-20 to
D-33 name of the plaintiff has been recorded. The
plaintiff has stated that on being deposited he used
to pay the amount of electricity bill to the
defendant.

¶57

13.As such, there is overwhelming evidence on record

¶58

to hold that the plaintiff is in possession of the
suit land and the defendant is not in possession of
the suit land, which has rightly been held so by the

¶59

¶60

trial Court, but the first appellate Court without
meeting with detailed reasonings recorded by the
trial Court holding to be in possession of the suit
land merely on the basis of electricity meter having
been installed in the name of the defendant and
property tax said to be paid by the defendant in the
name of the plaintiff, proceeded to hold that the
plaintiff is not in possession of the suit land. Such
a finding recorded by the first appellate Court is
contrary to oral and documentary evidence available
on record, as such, the first appellate Court went
wrong in holding that the plaintiff is not in
possession of the suit land and further committed
illegality in setting aside the decree of permanent
injunction granted in favour of the plaintiff.

¶61

14.Consequently, it is held that the plaintiff is in
possession of the suit land and the defendant has no
right and authority to interfere with his peaceful
possession. Therefore, the judgment and decree of the
first appellate Court to the extent of holding that
the plaintiff is not in possession of the suit land
and thereby setting aside the judgment and decree of
permanent injunction is set-aside and that of the
trial Court is hereby restored by answering the
substantial question of law in favour of the

¶62

¶63

plaintiff and against the defendant.

¶64

15. Consequently, Second Appeal No.292/2010 preferred by plaintiff-Rajendra Prasad Jain is hereby allowed and Second Appeal No.260/2010 preferred by defendant Sureshchand Jain is hereby dismissed leaving the parties to bear their own cost(s).

¶65

16. A appellate decree be drawn-up accordingly.

¶66

Sd/-

¶67

(Sanjay K.Agrawal)

¶68

 Judge

¶69

B/-

Suresh Chand Jain v. Rajendra Prasad Jain and Another

Case brief

What is this about?

What did the court decide?

Suresh Chand Jain v. Rajendra Prasad Jain and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dhanusharam and Others Vs Dwarika Prasad and Another

Ashutosh Shinde Vs State Of Chhattisgarh

Guda Vs Ramchand

Tularam Vs Dileshwar and Another

Mitthu Das Vs Khagraj Singh (Dead)

Parwati Sahish and Anr. Vs Bhuwan Bhaskar Yadav