PATNA HIGH COURT ISSUES JUDGEMENT ON RAJ KUMAR BHARATIYA V/S FEKU PRASAD YADAV AND OTHERS

PATNA, India, July 2 -- Patna High Court issued the following judgment on June 27:

Heard the learned counsels for the parties and I intend to dispose of the present petition at the stage of admission itself.

02. The petitioners has challenged the order dated 25.05.2017 passed by the learned Sub Judge-I, Supaul in Title Suti No. 205 of 2014 whereby the application dated 08.07.2014 filed on behalf the plaintiff under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure (for short 'the Code') has been rejected. Further challenge is to the order dated 05.03.2019 passed by the learned Additional District Judge-I, Supaul whereby the miscellaneous appeal filed by the plaintiff/appellant under Order XLIII Rule 1(r) of the Code challenging the order dated 25.05.2017 passed by the learned Sub Judge in Tile Suti No. 205 of 2014 has been rejected.

03. Learned counsel for the petitioner submits that Title Suit No. 205 of 2014 was filed by the plaintiff/petitioner for declaration of right title and possession over the land mentioned in Schedule-2 of the plaint. Further declaration was sought for possession of the plaintiff over 11 katha 09 dhur and 10 dhurki of land mentioned in Scheduled-2 of the suit property excluding 02 dhurs of land from the North-Eastern portion over which the defendant no. 1 is in possession and also for recovery of possession over the said 02 dhurs of land. Apart from that the plaintiff prays for setting aside the sale deeds dated 04.12.2012, 26.12.2012, 24.03.2013, 30.08.2013 executed in favour of the defendant no. 1, sale deed dated 04.12.2012 executed in favour of defendant no. 2 and sale deeds dated 26.12.2012 and 24.03.2013 executed in favour of defendant no. 3. Learned counsel further submits that there had been a partition in the family of the plaintiff in which separate shares were allotted in the name of father of the plaintiff and his uncles. The said partition took place on 16.12.1974. Learned counsel further submits that one Parameshwar Lal Bharatiya was one of the ancestors of the parties, who was having two sons Ram Bilash Bharatiya and Chunni Lal Bharatiya and defendant/respondent nos. 4, 5 and 6 are sons of Ram Bilash Bharatiya. Parameshwar Bharatiya got the land of new Khesra No. 10835. Subsequently, father of the plaintiff and his three sons came into possession over 03 bighas 09 katha and 17 dhurs of land of new Khesra No. 10853 (old Khesra No. 6560). Thereafter, in the year 1981- 82, another partition took place between the father and brothers of plaintiff. Subsequently, property mentioned in Schedule-I of the plaint was allotted in the share of plaintiff and the plaintiff came into peaceful possession over the said land and got his name mutated over the same. After this partition, when the plaintiff was out of station, the defendants 3rd and 4th set, in collusion with the local authorities, got a 10 feet soling road constructed from the main road up to the plot of the plaintiff in the northern side of his plot due to which area of plaintiff was reduced by 1 katha 04 dhurs and his plot got separated in two parts but the same was compensated from the land adjacent to the plaintiff which was in the share of the father of the plaintiff. Thereafter, the defendants 3rd and 4th set executed some sale deeds and defendant no. 1 deliberately, by use of force, took possession over 02 dhurs of land.

04. Learned counsel further submits that in the title suit, the defendants appeared and filed their written statement and during pendency of the suit, started construction over the part of the disputed land, then the plaintiff filed application under Order XXXIX Rule 1 and 2 of the Code on the ground that defendant no. 1 is making construction over the part of disputed land which would change the nature of the suit property. In the rejoinder, defendant nos. 1, 4, 5 and 7 denied about making any kind of construction over any portion of the suit property. Thereafter, on the application of the plaintiff, the court ordered for appointment of the Advocate Commissioner who went on the spot and submitted detailed report contending that the construction is going on over the part of the disputed land. However, the learned trial court rejected the application of the plaintiff vide order 25.05.2017. The said order was challenged by the plaintiff by filing Misc. Appeal No. 03 of 2017, which was also dismissed vide order dated 05.03.2019. Both these orders are under challenge before this Court.

05. Learned counsel further submits that while rejecting the application of the plaintiff, the learned trial court held that there was no prima facie case or balance of convenience in favour of the plaintiff and no loss will be caused to the plaintiff, if injunction was not granted. However, the learned trial court failed to appreciate that mutation is in the name of the plaintiff and from the report of the learned Advocate Commissioner, it was clear that some construction was going on over the part of the disputed land, resulting in change of the nature of the suit property. Learned trial court further failed to appreciate that even the rent receipt with respect to the land in dispute has been issued by the revenue office in the name of the plaintiff. Learned counsel further submits that both the courts failed to appreciate that the application for injunction was with respect to complete suit property and not restricted to area of 02 dhurs. The defendants are in negotiation with the person of the locality to sale the disputed plots which would unnecessarily create third party interest and would increase complexity in the suit. Learned counsel further submits that defendants were sold the suit property, who acquired no right and title over the suit property as the sale deeds executed by the vendors, without any right and title over the suit property, are null and void. If the defendants are not stopped from changing the nature of the suit property, the same would cause serious prejudice to the plaintiff and would result in irreparable loss to the plaintiff, as the plaintiff is having right and title over the suit property and mutation also exists in his name and rent receipts are being issued to him. The suit filed by the plaintiff raises some triable issues and for this reason, prima facie case is in favour of the plaintiff. If injunction is not granted, the petitioner/plaintiff would suffer irreparable loss/injury and therefore, balance of convenience lies in favour of the plaintiff. Hence, the orders passed by the learned subordinate courts are not sustainable and and the same need to be set aside.

The rest of the document can be viewed at https://patnahighcourt.gov.in/viewjudgment/NDQjOTcyIzIwMTkjMSNO-Z6l7fbM6Po8=

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