Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 1039 (MP)

Man Singh Jatav v. Satish

2017-09-26

VIVEK AGARWAL

body2017
ORDER 1. This petition has been filed by the petitioners under Article 227 of the Constitution of India being aggrieved by order dated 3.1.2017 passed in Miscellaneous Civil Appeal No.700032/2016 by the Court of District Judge, Morena, whereby the order passed by the trial Court, allowing the application under Order 39 rules 1 and 2 of the Code of Civil Procedure filed by the plaintiffs, has been affirmed. 2. It is the contention of the learned counsel for the petitioners that the Courts below have failed to appreciate that the petitioners had sold their share of property in favour of defendant No.5 vide registered sale deed Ex.P-9, in which there is a specific mention that possession of the suit property was handed over to the purchaser and, therefore, the trial Court in granting an injunction vide order dated 6.10.2016 faulted in recording the correct facts. Learned counsel for the petitioners has also assailed the impugned order passed in M.A. by District Judge, Morena on the ground that the first appellate Court has also failed to take into consideration the aspect of possession of defendant No.5 on the suit property by virtue of purchase from the hands of defendants No.1 to 4. 3. Learned first appellate Court has categorically recorded a finding that the plaintiffs had examined several witnesses namely, Saligram, Laxmi Narayan, Ramjilal, Dharma and Satish Kumar to show that the plaintiffs had possession over the suit property, whereas the defendants had not file any such prima facie evidence to show their possession and the affidavits filed by the defendants were contradictory. It has also noted the fact that merely mutation on the basis of the sale deed will not be a proof of possession of defendant No.5 on the suit property. 4. Learned counsel for the respondents has placed reliance on the decision of this Court in the case of Kallu v. Prema Bai, as reported in 1997 RN 238, wherein it has been held that the purchaser of the share of coparcener cannot take forcible possession and he has to file a suit for partition. Reliance has been placed on the judgments of the Hon'ble Supreme Court in the cases of Bhagwati Prasad v. Usha Devi and others, as reported in AIR 1990 MP 205 and Maharu and others v. Dhansai and others, as reported in AIR 1992 MP 220 . 5. Reliance has been placed on the judgments of the Hon'ble Supreme Court in the cases of Bhagwati Prasad v. Usha Devi and others, as reported in AIR 1990 MP 205 and Maharu and others v. Dhansai and others, as reported in AIR 1992 MP 220 . 5. On the other hand, the learned counsel for the petitioners submits that on the one hand in the suit it is mentioned that the property was self-acquired property of father of the plaintiffs, namely, Dataram, whereas, on the other hand, the first appellate Court has mentioned that as per the Partition Memory Document, no part of the property was alienated in favour of defendant No.1. He submits that there are contradictory findings and, therefore, under such facts and circumstances, the possession of defendant No.5 should not have been disturbed. 6. Partition deed is available on record as Annexure P-5, which was made between the 05 members of the plaintiffs' family and Man Singh in regard to the properties mentioned in the said partition deed. It has come on record that Man Singh is real brother of Dataram. It has also come on record that the building situated at Single Basti, Morena, was in the name of mother of Dataram and Man Singh, namely, Khimiya Bai and both Dataram and defendant Man Singh were living in half portion each of the said building for several years and, therefore, with a view to avoid any controversy in the future, it was decided that the portion marked in blue ink shall remain in possession of party No.1, i.e., the plaintiffs and one on the Southern side marked in red ink shall remain in the possession of party No.2, i.e., defendant No.1 Man Singh. In this very partition deed, it is mentioned that Dataram had constructed a house at Purani Basti, Behind Jain Mandir, Morena after purchasing the land from his own resources, which is mentioned as Ex.2 in the enclosed map and in which defendant No.1, i.e., the second party was given one room to stay with the permission of the first party and it was agreed that the second party, i.e., defendant No.1 shall handover vacant possession of the said property in favour of party No.1. 7. The property, which is subject-matter of the sale deed Annexure P-9 is Municipal Building No.265/7 and in South of such building, part of Datarm has been shown. 8. 7. The property, which is subject-matter of the sale deed Annexure P-9 is Municipal Building No.265/7 and in South of such building, part of Datarm has been shown. 8. In view of the above, it reveals that it is the property which is mentioned in Ex.2 in the enclosed map along with Annexure P-5 and, therefore, as per the Partition Memory Deed, defendant No.1 has no share in the property, which has been sold by him in favour of defendant No.5. Therefore, it is apparent that the possession of the suit property, as was admitted in Annexure P-5 which is not disputed by the present petitioners, is that of the plaintiffs and not of the defendant. Therefore, in view of such facts and the fact that the plaintiffs are in possession, they could not have been dispossessed without filing a suit for partition and also the fact in the light of the law laid down in the case of Kallu (supra), merely recital of delivery of possession in sale deed does not mean that the purchaser was put in possession of the property sold, this Court is of the view that the concurrent finding of the Courts below does not call for any interference and thus, the petition fails and is hereby dismissed.