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2020 DIGILAW 421 (UTT)

Paramjeet Kaur v. Ahsan Ali

2020-11-03

SHARAD KUMAR SHARMA

body2020
JUDGMENT Sharad Kumar Sharma, J. - The matter is heard through video conferencing. 2. The appellant is a plaintiff in Suit No. 883 of 2020 Smt. Paramjeet Kaur vs. Ahsan Ali and Others'. The plaint thus instituted by the plaintiff/appellant on 29.08.2020 described the property therein in its paragraph-12, which is referred to hereunder: image 3. Even the chauhaddi of the property in dispute was also described at the foot of the plaint as mentioned above. The appellant/plaintiff herein filed an application under Order 39 Rule 1 and 2, before the learned Trial Court, which was numbered as Paper No. 6 C (2), wherein, he prayed for the grant of temporary injunction of the nature by way of a restraint as against the defendants from interference over the property, which was more appropriately described as to be the property lying in 2376/1; having an area of 0.3080 hectares, situated in Mauja Markham Grant-Second Pargana Parwadoon, District Dehradun. The said application was objected by the defendants by filing an objection under Order 39 Rule 4, which has been considered by the learned Trial Court and by the impugned order, which is under challenge in the present appeal has been rejected, which has been challenged by the plaintiff/appellant, by invoking the provisions contained under Order 43 Rule 1 (r), has rejected the application of the plaintiff/appellant. 4. Learned counsel for the plaintiff/appellant had argued that in view of the provisions contained under Order 7 Rule 3, which is quoted hereunder, it mandates a responsibility, which is casted on the plaintiff to appropriately describe the property in the suit, which, in a case if it is in relation to an immovable property, so as to enable its identifiability of the same for the purposes of an effective adjudication of the suit. Order 7 Rule 3 of the C.P.C. is quoted hereunder: "3. Where the subject matter of the suit is immovable property.- Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identity it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers." 5. The aforesaid provision as contained under Order 7 Rule 3, the reference of which has been made by the learned counsel for the appellant, in fact, is only procedural in nature and it is not a substantive provision, which is substantively required to be determined to adjudicate, or for the purposes of deciding the application under Order 39 Rule 1 and 2. This Court is of the opinion that the application, which is preferred under Order 39 Rule 1 and 2; cannot be isolatedly decided merely because of the fact that the plaintiff in compliance of the provision of Order 7 Rule 3, had appropriately and effectively described the boundaries of the property in dispute; and hence, he would be automatically entitled for grant of injunction. This contention is not acceptable by this Court, for the reason being that, very interestingly if we scrutinize the findings, which has been recorded by the impugned order under challenge as was rendered by the court of Civil Judge (S.D.), the flow of title over the property in question relates to from the sale deed dated 26.09.2011, whereby, the seller of the present plaintiff/appellant, i.e. Mr. Ram Chandra, had purchased the property from its predecessor owner Mr. Laxmi Chand, which in itself described the property, which was conveyed by Laxmi Chand to Ram Chandra and by Ram Chandra to the present plaintiff/appellant by sale deed dated 20.05.2015. 6. Subsequent thereto, the plaintiff/appellant claims and pleaded in suit that he is the purchaser of the property by virtue of the sale deed dated 20.05.2015, as was executed by Mr. Ram Chandra in favour of the present plaintiff/appellant, and as per the sale deed, the property in question was described therein and the boundaries of the same was also given, which has been dealt with by the learned Trial Court's judgment in its paragraph-8 was based on amended deed dated 26.08.2020. Subsequent thereto, on 26.08.2020, the sale deed, which was initially executed on 26.09.2011 in favour of the seller of the appellant, by Laxmi Chand and by Ram Chandra to the plaintiff/appellant, by the sale deed of 20.05.2015, had sought to be amendment in the description of the property in the respective sale deeds; and as a consequence of the amendment made in the sale deed, the chauhaddi of the property was rectified to be shown as hereunder: image 2 7. It in fact at the time of purchase made by plaintiff/appellant on 20.05.2015 was described as: image 3 8. On the clear statistics, which are available on record, the amendment in the deed of 2011, which was executed in favour of the predecessor owner of the present plaintiff/appellant was made after 9 years of its execution of sale deed, i.e. on 26.08.2020, whereas, the sale deed of the present plaintiff/appellant was amended after 5 years of its execution on 20.05.2015 and the foundation of the argument is that since the sale deed of 26.09.2011, was amended and the boundaries described therein was changed, hence, it would justify the amendment, which was made on the like date, in the sale deed of the appellant dated 20.05.2018 and, hence, he contends that, in such an eventuality, since he stands recorded in the revenue records, he would be entitled for the grant of injunction. 9. The learned Trial Court while dealing with the aspects, which was required to be considered by the Court for the grant of temporary injunction in paragraph-10 of the said judgment had categorically recorded, which is quoted hereunder: image 4 10. The effect would be that as a consequence of the amendment carried in the two sale deeds on 26.08.2020, it was in fact not a typographical error, which would fall within the ambit of tatima deed, but rather it was an intentional amendment of the chauhaddi of the respective sale deeds and by virtue of the said amendment, in fact, the land of the Gram Sabha and that of the river was shown to be part of sale deeds, as property sold to the plaintiff/appellant. 11. After having heard the learned counsel for the appellant and after having gone through the impugned judgment dated 21.09.2020, I do not find any apparent legal error committed by the Court of Civil Judge (S.D.) in rejecting an application of the plaintiff/appellant under Order 39 Rule 1 and 2. However, the reference made in paragraph-17 of the impugned judgment order to the Collector, would not be preceded with by the Collector, as the matter is sub-judice in the Civil Suit, but this will not be construed, to be an injunction of any nature, as qua the defendant/respondent to the Suit. 12. Consequently, the appeal lacks merit and the same is, accordingly, dismissed.