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2023 DIGILAW 415 (PAT)

Rampujan Mahato v. Kokil Mahato

2023-04-05

KHATIM REZA

body2023
ORDER Re: I.A. No. 02 of 2022 This interlocutory application has been filed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure for restraining the respondents from interfering in peaceful possession of the appellant and from changing the nature of suit properties by making any construction over the suit land and to maintain status quo over the suit land as on today. 2. The instant Second Appeal has been admitted on 13.10.2023, by a Co-ordinate Bench of this Hon’ble Court and appeal notices were issued to the respondents, who appeared in this case through their learned counsel. 3. The Title Suit No. 121 of 2000 filed by the plaintiff-respondents for declaration of right and interest over the suit land. 4. The case of the plaintiff in short is that the party to the suit are patiddar and Dukhharan Mahato was resident of village Dindayalpur, who died after passing of Hindu Succession Act, 1956, leaving behind his widow Most. Tetari and two daughters, namely, Singaro Devi and Lalmuni Devi. After the death of Dukhharan Mahato, his widow, namely Most. Tetari came in possession of the property, which is 2 katha 4 dhurs of Khata No. 237, Plot No. 146 and 128 at village Dindayalpur. Most. Tetari and her husband were served by their daughter (Lalmuni Devi), who were looked after and due to the care they felt releived and being pleased with the service of her daughter (Lalmuni Devi), Most. Tetari expressed her will to gift her land to Lalmuni Devi, which was accepted by her, as such deed of gift (total area of 2 katha 4 dhurs) was executed on 28.11.1994 by Most. Tetari in favour of Lalmuni Devi and possession of the Singaro Devi and Lalmuni Devi land was also given and since the date of the execution of the deed of gift Lalmuni Devi came in possession of the gifted land. Further case of the plaintiff is that Lalmuni Devi sold the land area 1 katha 6 dhurs out of gifted land, which falls under Survey No. 146 and 128. The sale deed was executed in favour of the plaintiff for consideration money of Rs. 15,000/- (Fifteen Thousand) and possession of the land was also given, just after purchase, plaintiffs has put palani and nad khuta. The sale deed was executed in favour of the plaintiff for consideration money of Rs. 15,000/- (Fifteen Thousand) and possession of the land was also given, just after purchase, plaintiffs has put palani and nad khuta. The further case of the plaintiffs is that defendant also wanted to purchase the land from Lalmuni Devi but they failed to pay real price. Defendant wants to create problem, hence necessity of the suit. 5. The case of the defendant-appellant is that after the death of Dukhharan Mahato, his widow alone did not come in possession of the entire property (total area of 2 katha 6 dhurs) rather she came in possession of the property jointly with her two daughters, namely, Singaro Devi and Lalmuni Devi. Further case of the defendant is that Most. Tetari had no right to execute the alleged deed of gift to one of her daughters exceeding her share. The property left by Dukhharan Mahato divided into three parts one share to widow, namely, Most. Tetari and one-one share each to his daughters, namely, Singaro Devi and Lalmuni Devi. Dukhharan Mahato died intestate leaving total area of 2 katha 6 dhurs equals to 46 dhurs divided in 3, each share comes to 15 dhurs 3 dhurki. The further case of the defendant is that after the execution of deed of gift by Most. Tetari, the title of Lalmuni Devi remains on 1 katha 2 dhurs land over which the plaintiffs are in possession. She had already sold 6 dhurs land from her share vide sale deed dated 26.04.1993. The deed of gift could have been legal and valid only to the extent of 8 dhurs of land which could have been gifted to Lalmuni Devi by her mother (Most. Tetari). Lalmuni Devi had title only over 1 katha 2 dhurs land including the gift accuring from the actual share, so the sale deed executed by Lalmuni Devi was only for 1 katha 2 dhurs land. Plaintiff have mentioned wrong boundary in the sale deed, the suit land should only of 1 katha 2 dhurs toward Sourt-East as it will be evident from the description of the land given in the plaint by the plaintiff. Plaintiff have mentioned wrong boundary in the sale deed, the suit land should only of 1 katha 2 dhurs toward Sourt-East as it will be evident from the description of the land given in the plaint by the plaintiff. The defendant claimed his title on the basis of sale deed dated 19.02.1996 executed by second daughter of Dukhharan Mahato, namely, Singaro Devi for area of 13 dhurs 15 dhurki and put him in possession of the said land. 6. Learned counsel for the defendant-appellant contended that during the pendency of the instant Second Appeal respondent No. 1 and heirs of respondent No. 2 are bent upon to raise construction over the suit land and for that purpose they have collected materials at the site. It is submitted that respondents have given threatening to the appellant for dire consequence. It is further submitted that respondents are also bent upon to dispossess appellant from nadh khuta, Bhusaul, Palani, which are in possession of the appellant. Respondents are not in possession of the land and they had also not sought for recovery of possession. It is further submitted that if respondents will not be restrained from making construction and from forcefully dispossessing the appellant from the suit land and their changing the nature of the suit property it will not maintain status quo as on today the appellant will suffer irreparable loss and injury. It is further submitted that defendant’s sale deed is executed prior to the plaintiff’s sale deed. 7. Learned counsel for the plaintiff-respondents has filed their counter affidavit on behalf of the respondents with regard to injunction petition. It is submitted that the instant Second Appeal has been filed against the judgment of affirmance and both the Courts have concurrently decreed the suit of the plaintiff. The present disputed land, which is in possession of the defendant since 1994 and the appellant has been always disturbing and threatening, with the conivance of police recently on 05.02.2023, they have put their hut on the land of defendant. This statement has been given in paragraph 10 of the counter affidavit by the respondents, which demolishes the case with regard to possession of the plaintiff-respondents. 8. This statement has been given in paragraph 10 of the counter affidavit by the respondents, which demolishes the case with regard to possession of the plaintiff-respondents. 8. In the aforesaid facts and circumstances and averment made by the parties in their I.A. and counter affidavit to the I.A., it is manifestly clear that the sale deed of the appellant is much prior to the sale deed of the plaintiff-respondents. The main issue involved in the instant Second Appeal is with regard to the share of the parties. The defendant-appellant purchsed only 13 dhurs 5 dhurki (Ext. 3) from second daughter of Dhukhharan Mahato, who was legally entitled to a share of 15 dhurs 5 dhurki, as claimed by the appellant, therefore, the purchased land of the defendant is less than the share of his vendor (Singaro Devi). 9. In the aforesaid facts and circumstances both the parties are directed to maintain status-quo as existing on date till the disposal of this Second Appeal. 10. Accordingly, I.A. No. 02 of 2022 is disposed of.