Dismissed

Madhu Lal v. Sita

Rajasthan HC21 Sept 2023CSA/154/2023

Case brief

AI extract

What is this about?

The Single Judge dismissed the second appeal, affirming lower courts' factual findings on possession and rejecting claims regarding an unregistered will. However, the court directed the Executing Court to release the appellant's belongings attached during execution proceedings.

What did the court decide?

The stay petition and pending application are dismissed. It is directed that the Executing Court release the appellant's belongings in the attached house upon his application.

Madhu Lal Vs Sita — Execution and Attachment | Rajasthan HC (2023)

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[2023:RJ-JD:31197]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 154/2023

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Madhu Lal S/o Shri Shankar Lal, Aged About 55 Years, By Caste Nai (Sen), Resident Of Village And Post Madara, Tehsil Railmagra, District Rajsamand Rajasthan.

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----Appellant

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Versus

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Sita W/o W Ji Sen, Aged About 42 Years, By Caste Sen, Resident Of Village And Post Agariya, Tehsil Aamet, District Rajsamand Rajasthan.

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----Respondent

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For Appellant(s)	: Mr. Satya Prakash Sharma
For Respondent(s)	: Nonepresent

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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21/09/2023

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The present second appeal has been preferred against the judgment and decree dated 21.08.2023 passed by the District Judge, Rajsamand in Civil Appeal No.13/2023 (CIS No.13/2017) whereby the judgment and decree dated 15.11.2022 passed by the Civil Judge, Railmagra, Rajsamand in Civil Suit No.44/2015 (CIS No.44/2015) has been affirmed. Vide judgment and decree dated 15.11.2022, learned trial Court decreed the suit for possession and permanent injunction as preferred by the plaintiff. 2. Learned counsel for the appellant submitted that the Courts below erred in relying upon the Will which could not have been termed to be proved in terms of law. Learned counsel submitted that the Courts below erroneously held the Will to be registered whereas the same was not. He further submitted that it is proved

[2023:RJ-JD:31197]

[CSA-154/2023]

(2 of 4)

on record that the defendant was in possession of the property being the adopted son of Nathu Singh/Deo Bai and the Courts below ignored the evidence led by the defendant on this aspect.

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Heard learned counsel for the appellant and perused the material available on record as well as the documents supplied by the counsel. 4. So far as the ground raised by the counsel for the appellant regarding Will being not registered or not been proved in terms of law, is concerned, the present was not a suit for declaration of title or ownership, the suit was for possession and injunction preferred by the plaintiff with an averment that the defendant had forcibly taken over possession of the property and therefore, he may be directed to handover the possession back to the plaintiff.

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In the opinion of this Court, the plaintiff was not claiming any relief qua title/ownership and even if it is held that the Will was not proved on record, the same would be of no relevance so far as the possession is concerned. Regarding the issue of possession, it is concurrent finding of both the Courts below that the defendant himself, in his cross-examination, specifically admitted that he took over the possession of the property and when he did so, the criminal proceedings were initiated by the plaintiff against him.

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This Court also examined the evidence as led by the defendant Madhu Lal (DW1). In his cross-examination, he specifically admitted as under :

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“ ;g dguk lgh gS fd eq>s lekt okyks us edku lkSik mlls igys eSa vius gh edku esa jgrk FkkA ;g dguk lgh gS fd eSus o"kZ 2014 esa dCtk fd;k rc lhrk us Fkkus esa fjiksVZ nh FkhA………..

(3 of 4)

[2023:RJ-JD:31197]

[CSA-154/2023]

………..;g dguk lgh gS fd esjs }kjk dCtk fd;k x;k rc lhrk }kjk Fkkus esa fjiksVZ nh xbZ Fkh esjs }kjk ugh nh xbZ] D;ksafd rc eSa ml edku esa jg jgk FkkA ;g eq>s /;ku ugh gS fd nsm ckbZ us lhrk ds i{k esa dksbZ jftLVMZ olh;r djokbZ gksA………..”

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A perusal of above the statements makes it clear that the defendant himself admitted that he took over possession of the property in the year 2014 and at that point of time also, criminal proceedings were initiated against him. The present suit has been filed in the year 2015 which proves that the proceedings have been undertaken after the property in question having forcibly been taken over by the defendant.

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Further, burden to prove issue No.3 pertaining to the possession of the defendant on the land in dispute was on the defendant which he miserably failed to prove. Both the Courts below reached to the finding that in view of the clear contradictory statements of the defendant himself, it cannot be concluded that he was in peaceful possession of the property since last 12 years. 8. In view of the above observations and in view of the specific findings of both the Courts below which are totally factual in nature and concurrent, this Court does not find any reason to interfere with the same.

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No substantial question of law arise in the present appeal and the same is therefore, dismissed .

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The stay petition and the pending application, if any, also stand dismissed.

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[2023:RJ-JD:31197]

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[CSA-154/2023]

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At this stage, learned counsel for the appellant submitted that in Execution Proceedings (No.5/23) initiated by the plaintiff, the possession from the defendant has been taken over and the property in question has been attached. He submitted that belongings of the defendant are in the house in question and the same deserves to be released to him as the same comprise of materials of daily need of the family.

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In view of the submission made, it is hereby directed that on an application being preferred by the defendant before the Executing Court for release of his belongings in the house in question, appropriate orders be passed with immediate effect and the belongings, if any, in the house in question be handed over to him in terms of law.

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(REKHA BORANA),J

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103-Vij/-

Madhu Lal v. Sita

Case brief

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What did the court decide?

Madhu Lal v. Sita

Case brief

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