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2019 DIGILAW 1387 (RAJ)

Vinod Kumar Brahmin v. Bhagi Devi Brahmin

2019-05-08

DINESH MEHTA

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JUDGMENT : Dinesh Mehta, J. 1. The present appeal under Order XLIII Rule 1 of the Code of the Civil Procedure, 1908 has been filed, laying challenge to the order dated 14.07.2014 passed by the learned Additional District Judge, Sri Ganganagar (hereinafter referred to as the 'trial Court'), vide which the trial Court has decided the application under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, 1908, practically with the consent of the parties, relevant extract whereof reads as under: ^^,slh fLFkfr es izkFkhZ;k@oknh;k dh vksj ls izLrqr ;g izkFkZuk i= ckcr~ vLFkkbZ O;kns'k Lohdkj fd;k tkdj vkns'k fn;k tkrk gS fd vizkFkhZ fouksn dqekj okn ds yacudky esa jksgh y/ksj rglhy lwjrx<+ ds [kkrk la[;k 99@17 64 ds [kljk la[;k 185 ,oa 186 dh dqy 12-645 gSDVs;j Hkwfe ij izkFkhZ;k ds la;qDr dCtk esa izkFkhZ;k dks tcju csn[ky djus ,oa vizkFkhZ vius uke ls bardky ntZ gksus ds vk/kkj ij mDr Hkwfe dks vU; fdlh dks jgu] cS; ,oa gLrkarfjr djus ls izfrcf/kr jgsA lquk;k x;kA i=koyh QSly”kqekj gksdj ckn rdehy ewy okn ds lkFk layXu jgsA^^ 2. Laying challenge to the order aforesaid, Mr. Jain-learned counsel for the appellant contended that a perusal of the order reveals that both the parties had given a consent that during pendency of the suit, that they shall not transfer, alienate or create third party right in respect of disputed property, yet the trial Court has gone beyond the consent terms and has given a further direction that the appellant-defendant shall not forcibly dispossess the respondent-plaintiff from her possession. 3. Mr. Bhadu-learned counsel for the respondent contended that the order passed by the trial Court is perfectly just and valid and does not call for any interference. He argued that the appellant cannot be permitted to dispossess the respondent-plaintiff during pendency of the suit. 4. 3. Mr. Bhadu-learned counsel for the respondent contended that the order passed by the trial Court is perfectly just and valid and does not call for any interference. He argued that the appellant cannot be permitted to dispossess the respondent-plaintiff during pendency of the suit. 4. It is pertinent to note that during pendency of the present appeal on 09.08.2018, this Court had asked the respondent to produce evidence of her possession while directing as under: "Learned counsel for the respondent prays for and is granted three weeks' time to place on record as to which portion of the land in dispute she is in possession as it is submitted by learned counsel for - the respondent that the respondent is in possession of 1/3rd land, which belongs to her only and that the appellant is entitled to remain in possession of his portion of the land. List on 30.08.2018." 5. Thereafter, last opportunity was granted by this Court to the respondent on 24.10.2018. 6. An additional affidavit has later been filed on 25.04.2019, with the following averments: "1. That in pursuance of order of this Hon'ble Court dated 09.08.2018, I met with the concern patwari to take in writing as to which portion of land in dispute she is in possession, but he refused to give in writing, looking to fact that matter is sub-judice before the Hon'ble Court. 2. That after the death of her husband, I am possession of 1/3rd land which belong to her only." 7. Mr. Jain at the outset submitted that neither the additional affidavit filed by the respondent on 25.04.2019 can be taken on record nor any inference on. such basis can be drawn, as the period under the last opportunity granted to the respondent had expired on 24.10.2018. 8. Having heard learned counsel for the parties and perused the material available on record. 9. It is true that the additional affidavit has been filed by the respondent on 25.04.2019, but looking to the fact that respondent is an old and illiterate lady, the same is taken on record, while condoning the purported delay in filing the same. 10. 8. Having heard learned counsel for the parties and perused the material available on record. 9. It is true that the additional affidavit has been filed by the respondent on 25.04.2019, but looking to the fact that respondent is an old and illiterate lady, the same is taken on record, while condoning the purported delay in filing the same. 10. Having heard learned counsel for the parties and upon perusal of the additional affidavit filed by the respondent, this Court is not in a position to infer with certainty that the plaintiff- respondent is in possession of any part of the disputed land, particularly when both the parties had agreed to maintain status-quo. 11. In view of the aforesaid, the following stipulation of the trial Court appears to be unfounded. The same is thus quashed and set aside: ^^[kkrk la[;k 99@17 64 ds [kljk la[;k 185 ,oa 186 dh dqy 12-645 gSDVs;j Hkwfe ij izkFkhZ;k ds la;qDr dCtk esa izkFkhZ;k dks tcju csn[ky djus^^ 12. However, since the factum of possession of the plaintiff is not clear, it is directed that the parties shall maintain status-quo regarding ownership, title and possession of the property till.