Dismissed

Smt. Bheekhi Devi v. Manak Lal and Ors.

Rajasthan HC3 Aug 2021CSA/120/2017

Case brief

AI extract

What is this about?

This second appeal challenged the dismissal of a suit for permanent injunction. The High Court held the appeal was not maintainable as the plaintiff admitted lack of possession, making the case for injunction illusory. The appeal was accordingly dismissed as there was no substantial question of law.

What did the court decide?

The second appeal was dismissed with no substantial question of law arising. The judgment and decrees passed by the trial court and the first appellate court were upheld.

Smt. Bheekhi Devi Vs Manak Lal and Ors. — Property and Title | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Second Appeal No. 120/2017

¶3

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

¶4

----Appellant

¶5

Versus

¶6

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

¶7

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

¶8

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

¶9

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

¶10

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

¶11

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.

¶12

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.

¶13

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.

¶14

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.

¶15

----Respondents

¶16

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

¶17

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.

¶23

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.

¶24

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.

¶25

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.

¶26

After hearing the parties, the trial court came to the conclusion that the defendants and their predecessors were in

¶27

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

¶28

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.

¶29

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.

¶30

Feeling aggrieved, the appellant filed first appeal.

¶31

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.

¶32

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.

¶33

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.

¶34

(4 of 5)

¶35

[CSA-120/2017]

¶36

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.

¶37

Learned counsel for the respondents – defendants supported the judgments impugned.

¶38

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

¶39

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.

¶40

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.

¶41

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

¶42

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.

¶43

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.

¶44

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.

¶45

(ARUN BHANSALI),J

¶46

25-Sumit/-

Smt. Bheekhi Devi v. Manak Lal and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Bheekhi Devi v. Manak Lal and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kishan Singh @ Krishan Singh Vs State of Rajasthan

Lrs.of Richpal Vs Krishan Kumar

Chandra Kanwar Vs Ravindra Singh

Gulkandi @ Shanti Devi Vs Banshi Lal

Municipal Board, Chittorgarh Th. Comm. Vs Rajmohan

The New India Assurance Company Limited Vs Mohan and Ors.