Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 903 (RAJ)

Jagdish Ram v. Mangat Ram

2015-04-22

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. This writ petition is directed against the order dated 07.07.2014 passed by the trial court, whereby the application filed by the respondent under Section 151 CPC has been accepted by the trial court and the petitioner has been directed to hand over possession of the suit plot to the respondent within 15 days and on failure, the SHO, Police Station-Kesrisinghpur has been directed to ensure that the possession is handed over to the respondent. 2. The facts in brief may be noticed thus: the respondent Mangat Ram filed a suit on 29.08.2013 for permanent injunction regarding the plot of land admeasuring 35 feet X 40 feet situated at 6 V Dhannur, Tehsil-Srikaranpur claiming that the said plot was allotted to him on 05.04.2006 free of cost and Patta in this regard was issued by Sarpanch of Gram Panchayat 6 V Dhannur; the boundary and the neighbourhood of the plot in question was also indicated. It was claimed that the plaintiff was in possession of the plot; the defendant Jagdish Ram was attempting to take forcible possession of the plot and in case he succeeds, the same would result in irreparable injury to the plaintiff and, therefore, the suit seeking permanent injunction was being filed. It was prayed that permanent injunction restraining the defendant from taking forcible possession of the plot be passed. 3. It appears that the trial court appointed Commissioner on 30.08.2013; the Commissioner on the same day visited the site and the inspection report was prepared in presence of the plaintiff, his counsel and wife of defendant Jagdish Ram. It was indicated that around the plot neither there was any boundary nor any barbed wire fence, on the eastern side of the plot was road and certain goods were lying and on the southern side, one coat was lying on which a lady was sitting, who on inquiry about her name, stated that she is Dharma Bai, during preparation of report, two more women with two coats came and where after, brought one cow and one buffalo and forcibly tide them at the plot. 4. 4. Where after, the petitioner filed application on 31.08.2013 under Order 39, Rule 7 CPC, inter alia, claiming that Patta for the suit plot was issued to Surjan Singh S/o. Gurdev Singh, which was sold by Surjan Singh to the defendant, wherein the applicant had constructed a permanent kotha and boundary wall and the same was in his possession and also gave out the neighbours. It was alleged that plaintiff based on a forged and concocted Patta has filed the suit and got Commissioner appointed and a wrong report has been produced; the situation at the plot has changed and for the purpose of getting correct report, Commissioner be appointed. The court appointed the same advocate as Commissioner, who gave report dated 30.08.2013, who gave another report dated 04.09.2013 and indicated that on the eastern side of the plot, a wall of bricks without any binding agent has been constructed, similarly on the northern side 1/2 feet high brick wall without binding agent is existing, on southern side about 40 feet long and 5 feet high wall has been constructed and on the western side near the wall of Ramlal, a small room admeasuring 6 X 7 feet and 5= feet height has been constructed and a coat was lying therein. 5. The plaintiff filed application dated 16.09.2013 under Section 151 CPC, inter alia, indicating that in terms of the Commissioner Report dated 30.08.2013, the suit property was in possession of the plaintiff; even during the presence of the Commissioner, the defendant has started attempts to take possession and after the inspection was over, the defendant Jagdish Ram along with other persons unauthorisedly entered on the plot and started causing injuries to the wife of the defendant and lodged a false case against him. The cross First Information Reports were produced, where after it was submitted that application was moved by the defendant on 31.08.2013 after forcible taking possession of the suit property and the Commissioner Report dated 04.09.2013 clearly indicates that the possession of the plaintiff has been removed, brick wall with and without binding agent around the plot has been constructed along with a small room, and the petitioner has been dispossessed during the pendency of the suit. It was submitted that as the plaintiff-applicant has been dispossessed during the pendency of the proceedings, the status quo ante deserves to be restored and the possession of the suit plot be directed to be handed over back to the plaintiff. 6. The application was resisted by the petitioner-defendant. It was submitted that the defendant was in possession of the suit plot; the Patta produced by the plaintiff was forged and concocted; the suit was filed on wrong facts, based on the Commissioner Report, it cannot be claimed that the plaintiff was in possession, the Report cannot be read; the Commissioner Report was wrongly prepared; the plot was purchased by defendant by way of agreement dated 28.04.2013 and looking to the old possession of Surjan Singh, the same was sold to him; the averments made in the application regarding dispossession were denied and it was prayed that the application be dismissed. 7. The trial court after hearing the parties came to the conclusion that from the Patta dated 05.04.2006, the plot in question was owned by the plaintiff; in the Patta dated 20.09.1988 and agreement dated 24.08.2013, the description of plot has not been given; the Commissioner Report dated 31.08.2013 indicates that there was no boundary or fencing at the plot, the Report was given by Manoj Kumar, Advocate, who gave Report dated 04.09.2013 also and indicated construction of wall around the plot and a small room on the plot; the Report has been prepared by the same Commissioner and at this stage, it cannot be said that the Report dated 31.08.2013 was incorrect; the law laid down by Hon'ble Supreme Court in the case of Meera Chauhan v. Harsh Bishnoi & Anr.: 2007 (2) Civil Court Cases 1, was applicable as the plaintiff has been dispossessed during the pendency of the suit and, consequently directed restoration of possession as noticed hereinbefore. 8. It is submitted by learned counsel for the petitioner that the trial court was not justified in ordering restoration of possession, inasmuch as, the plaintiff was never in possession of the suit property and a totally false claim based on a ex-parte Commissioner Report was made in the application under Section 151 CPC, which has no basis and, therefore, the order impugned deserves to be quashed and set aside. It was submitted that the petitioner was in settled possession of the plot in question based on the agreement to sale in his favour. The plaintiff in a planned manner filed the suit, obtained ex-parte Commissioner Report and filed the application seeking possession of the plot. It was submitted that the very fact that even without notice, the petitioner's wife was present at the suit plot clearly indicates that the defendant was in possession of the plot and, therefore, the order impugned passed by the trial court could not have been passed and the same deserves to be quashed and set aside. 9. Learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the petitioner and supported the order impugned. It was submitted that in the Patta relied on by the petitioner, on the two sides of the plot, lane has been indicated, whereas in both the Commissioner Reports there is road only on one side of the plot and the plot is surrounded by other plots on the three sides, which clearly indicates that the Patta sought to be relied on by the petitioner-defendant does not pertain to the land in question and the petitioner was illegally seeking to dispossess the plaintiff form the land in question. A comparison of both the Commissioner Reports dated 31.08.2013 and 04.09.2013 clearly fortifies the attempts made by the petitioner, in which, he succeeded in dispossessing the plaintiff during the pendency of the suit and taking possession of the plot in question and, therefore, the trial court was truly justified in directing restoration of possession and the writ petition filed by the petitioner deserves to be dismissed. 10. I have considered the rival submissions and have perused the material placed on record. 11. It would be relevant to notice that the petitioner-defendant entered into an agreement to sale dated 24.08.2013 (Annex.-4) with one Surjan Singh regarding the plot of land admeasuring 30 feet X 45 feet. The document (Annex.-4) does not indicate any amount of consideration whatsoever and simply indicates that a plot situated at 6 V Dhannur has been sold by Surjan Singh and he has received the entire amount. Interestingly, though it has been claimed by seller Surjan Singh that he was in possession of the plot, there is no reference and/or indication in the document (Annex.-4) regarding handing over of the possession to defendant Jagdish Ram. Interestingly, though it has been claimed by seller Surjan Singh that he was in possession of the plot, there is no reference and/or indication in the document (Annex.-4) regarding handing over of the possession to defendant Jagdish Ram. The document (Annex.-4) though indicated as agreement essentially is a purported sale deed. 12. From the sequence of events, it appears that the post execution of the document dated 24.08.2013 (Annex.-4) some attempt was made by defendant regarding the possession of plot in question, forcing the plaintiff to file the suit on 29.08.2013 and the Commissioner was appointed on 30.08.2013, who visited the site on the same day and gave the Report on 31.08.2013 indicating the fact that there were no boundaries either permanent or by way of barbed wire and further indicated that one Smt. Dharma Devi was available at the site sitting on a coat and prepared a Report in presence of wife of the defendant. The application filed by the defendant on 31.08.2013 under Order 39, Rule 7 CPC merely alleges that the Commissioner Report was prepared without notice and that ^^mDr vgkrk dh ifjfLFkfr;ksa esa ifjorZu gks pqdk gSA blfy, izkFkhZ@izfroknh mDr vgkrk dh lgh HkkSfrd fjiksVZ gsrq iqu% deh'uj fu;qDr djokuk pkgrk gSA^^ 13. The Commissioner Report dated 04.09.2013, which was prepared by the same Commissioner, who gave the Report dated 31.08.2013 indicated a sea change in the status, whereby brick wall around the plot came up within a period of three days, part of the wall was made up merely by putting up the bricks without any binding agent and a small room admeasuring 6 X 7 feet also came up at the site. The very fact that between the period 30.08.2013 and 04.09.2013, the petitioner-defendant succeeded in raising construction at the plot by creating boundary and a room so as to indicate his possession at the suit plot clearly fortifies the fact that the averment contained in the application under Order 39, Rule 7 CPC indicating change of circumstance was sought to be was implemented during the period 31.08.2013 and 04.09.2013 and possession was taken by the defendant from the petitioner. There is also apparent substance in the argument raised by learned counsel for the respondent that the Patta relied on by the defendant indicates lane on two sides of the plot, whereas there are plots of other persons on the three sides of the disputed plot, which in turn are in sync with the Patta relied on by the plaintiff giving out the identical boundaries and neighbourhood as indicated in both the Commissioner Reports. 14. Hon'ble Supreme in the case of Meera Chauhan (supra) has categorically held that the court can exercise its inherent power to put back the parties in the same status. 15. From the discussion above, it is apparent that the petitioner regarding whom, there is no reference of handing over of possession in the document (Annex.-4) has dispossessed the plaintiff during pendency of the suit. Such high handed behaviour of the parties cannot be encouraged and the trial court was justified in ordering restoration of possession to the plaintiff while exercising power under Section 151 CPC. In view of the above discussion, there is no substance in the writ petition, the same is, therefore, dismissed. Petition Dismissed.