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2020 DIGILAW 94 (UTT)

Chandra Kant Chahal v. Rajendra Trehan

2020-02-13

LOK PAL SINGH

body2020
JUDGMENT Lok Pal Singh, J. - Second Appeal is directed against the judgment and decree dated 30.07.2015, passed by VI Addl. District Judge, Dehradun, whereby Civil Appeal no. 19 of 2011, titled as Chandra Kant Chahal and others Vs Rajendra Trehan and others, has been dismissed and judgment and decree dated 10.01.2011, passed by I Addl. Civil Judge (Junior Division), Dehradun, in Original Suit no. 104 of 1991, Smt. Satyanand Chahal and others Vs Smt. Shanti Devi and others was affirmed. 2. Facts leading to filing of the present case are that the plaintiffs / appellants instituted aforesaid suit for seeking decree of prohibitory injunction against the defendants / respondents in regard to land khasra no. 11 to 13, 81, 82, 84, 85, 88 to 91, 96 to 98, 103, 365, 366, 403 to 413, 427, 430 to 432, 482, 487 and 61 / 764, total measuring 0.77 Acres, situated in Village Dhakpatti Mahaal Pratap Singh, Pargana Central Doon, District Dehradun, stating therein that the said land was recorded in the name of Smt. Satyanand Chahal, who died during the pendency of aforesaid suit. The suit property is bounded as towards south property of Sharp Memorial School and is divided by the property of Sharp Memorial School through a wall. 3. Smt. Ghasiti Devi, who was an insane lady, was owner-in-possession of the suit property. Smt. Satyanand Chahal, mother of the appellants, moved an application before the District Judge, Saharanpur by filing a misc. case no. 91 of 1935 for appointment of guardian of the person and property of Smt. Ghasiti Devi. She was appointed the guardian of the person and property of Smt. Ghasiti Devi by District Judge, Saharanpur. After obtaining permission from the District Judge, Dehradun to sell the property of Smt. Ghasiti Devi, Smt. Satyanand Chahal executed registered sale deed in favour of defendant nos. 1 and 2 on 29.06.1968. On the strength of said sale deed, defendant nos. 1 and 2 became the owners of the suit property. They in turn sold the suit property to defendant no. 8 through registered sale deed dated 21.01.1988. After the execution of the said sale deed in favour of defendant no. 8, Smt. Satyanand Chahal filed Original Suit no. 104 of 1991, Smt. Satyanand Chahal Vs Smt. Shanti Devi, claiming that she is the owner of the suit property and in possession. 4. 8 through registered sale deed dated 21.01.1988. After the execution of the said sale deed in favour of defendant no. 8, Smt. Satyanand Chahal filed Original Suit no. 104 of 1991, Smt. Satyanand Chahal Vs Smt. Shanti Devi, claiming that she is the owner of the suit property and in possession. 4. The suit was contested by the defendants. During the pendency of suit, Smt. Satyanand Chahal died leaving behind her legal heirs namely, Chandra Kant Chahal, Krishna Kant Nand Chahal and Smt. Anita Nand Chahal. 5. On the basis of pleadings of the parties, learned trial court framed following issues: i) Whether the plaintiff is owner in possession of the property in dispute? ii) Whether late Smt. Ghasiti Devi, mother of the plaintiff, was the owner of the property in dispute and whether the plaintiff has sold the property in dispute as guardian of her mother after taking permission from the District Judge to defendant no. 1 through sale deed dated 29th June 1968 and had handed over the possession of the same to defendant no. 1. If yes, its effect? iii) Whether defendant no. 1 agreed to sell the property in dispute to Mr. Satyaprakash Goyal through sale deed dated 21.01.1988 and had she handed over the possession of the property in dispute to Mr. Satyaprakash Goyal after receiving Rs.25,000/- as bank draft dated 20.01.1988? iv) Whether the property in dispute is abadi property and is situated within the limits of Municipal Board and is recorded in the records of Municipal Board in the name of defendant no. 1? If yes, its effect? v) Whether defendant no. 1 is entitled to get the benefit of Section 43 of the Transfer of Property Act? vi) Whether the suit of the plaintiff is barred by the principal of estoppel and acquiescence? vii) Whether the plaintiff has not come before the court with clean hands and is not entitled to get the relief of prohibitory injunction? viii) Whether the suit is under valued and court fee paid is insufficient? ix) Whether the details of the property in dispute as mentioned in the list of plaint are insufficient and misleading? If yes, its effect? x) Whether defendants nos. 3 to 7 are the owners in possession of the property in dispute? xi) Relief? xii) Whether the defendant no. 1 had sold the property in favour of defendant no. ix) Whether the details of the property in dispute as mentioned in the list of plaint are insufficient and misleading? If yes, its effect? x) Whether defendants nos. 3 to 7 are the owners in possession of the property in dispute? xi) Relief? xii) Whether the defendant no. 1 had sold the property in favour of defendant no. 8 through sale deed dated 26.03.2004 / 27.03.2004 and as such plaintiffs no. 1/1 to 1/3 have no right to contest the suit? If yes, its effect? Subsequently, issue nos. (iii), (v) and (x) were struck off considering them unnecessary by the trial court vide order dated 04.12.2010 under Order 14 Rule 5 of the C.P.C. 6. The trial court having considered the documentary and oral evidence adduced by the parties recorded a categorical finding that being the guardian of the property and person of Smt. Ghasiti Devi and after obtaining permission from the District Judge, Saharanpur, the plaintiff Smt. Satyanand Chahal had executed the sale deed dated 29.06.1968 in favour of defendant nos. 1 and 2, who became the owner and came into possession of the suit property and being the owner-in-possession of the suit property have sold the same through registered sale deed dated 21.01.1988 in favour of defendant no. 8. The trial court also recorded a finding that the plaintiffs neither are in possession nor the owners of the suit property. The suit property was sold by the plaintiff Smt. Satyanand Chahal through registered sale deed dated 29.06.1968. 7. Feeling aggrieved, the plaintiffs preferred Civil Appeal no. 19 of 2011, Chandra Kanta Chahal & others Vs Rajendra Trehan & others. The First Appellate Court dismissed the appeal vide judgment and decree dated 30.07.2015. The First Appellate Court also recorded a categorical finding that Smt. Satyanand Chahal being the guardian of the person and property of Smt. Ghasiti Devi and after obtaining permission from the District Judge, Saharanpur sold the property. Thus, she cannot claim any rights over the said property and she is also not in possession. 8. Both the courts below have recorded concurrent findings of fact of possession that defendant no. 8 is in possession of the suit property. The finding of possession is the finding of fact. Since both the courts below have recorded concurrent findings of fact that defendant no. 8. Both the courts below have recorded concurrent findings of fact of possession that defendant no. 8 is in possession of the suit property. The finding of possession is the finding of fact. Since both the courts below have recorded concurrent findings of fact that defendant no. 8 is in possession of the suit property, the concurrent finding of fact cannot be interfered in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. Since the plaintiffs neither are the owners of the suit property nor in possession thus they could not have maintained the suit for prohibitory injunction against the real owner, who is in possession over the suit property. 9. Present second appeal is pending since 2015, but time and again adjourned on the request of learned counsel for the appellants. The same is not admitted yet. 10. Though the appellants have framed some substantial questions of law in the memo of appeal, but no substantial question of law is found involved in the present second appeal. 11. Having heard learned counsel for the parties and on perusal of the material available on record, this Court is of the view that both the courts below have recorded concurrent findings of fact that the appellants / plaintiffs neither are in physical possession of the suit property nor are they the owners of the property. A decree of prohibitory injunction cannot be issued in favour of the plaintiffs if the plaintiffs are not in possession or owners of the suit property. Furthermore, I do not find any substance in the appeal as no substantial question of law is involved in the second appeal. 12. The second appeal is devoid of merit and is, accordingly, dismissed. No order as to costs.