Patna High Court - Orders
Abdhesh Yadav vs Mahendra Pradad Yadav on 13 December, 2024
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.429 of 2018
======================================================
Abdhesh Yadav & Ors.
... ... Appellant/s
Versus
Mahendra Pradad Yadav & Anr.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Arun Kumar, Adv.
Mr. Swapnil Kumar Singh, Adv.
Mr. Shubham Raj, Adv.
For the Respondent/s : Mr. Ashutosh Jha, Adv.
Mr. Avinav Kumar, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
ORAL ORDER
18 13-12-2024Re: I.A. No. 01 of 2023 This interlocutory application has been filed for restraining the respondents from interfering with the peaceful possession of the appellants with respect to the suit land.
2. Learned counsel for the appellants submits that the present suit has been filed for declaration of plaintiffs right, title and interest over the suit land and also for declaring entry of the name of the father of the defendant nos. 1 and 2 with respect to the suit land in the survey records of right is wrong and also for permanent injunction by restraining the defendant not to disturb the possession of the plaintiffs. The title suit was decreed in favour of the plaintiffs.
3. Being aggrieved by the judgment and decree dated 24.03.2005 passed in Title Suit No. 147 of 2002, the defendants/respondents filed Title Appeal No. 64 of 2005 which was reversed by the lower appellate court against which the Patna High Court SA No.429 of 2018(18) dt.13-12-2024 2/6 plaintiffs/appellants filed the present appeal which was admitted on 22.07.2024 by this Court after hearing both the parties. Learned counsel for the appellants submits that the father of the plaintiffs purchased the suit land on 29.10.1958 from his personal income after partition of the joint family property. Since then he is in possession. It is also submitted that the name of the father of the appellants was recorded in the revenue record and Jamabandi was created in his favour and Register-II was prepared. Learned counsel for the appellants further submits that due to wrong entry in the Revisional Survey records of right, the defendant claimed the property as joint family property which was jointly recorded in the name of Sahdeo Yadav and Mahadeo Yadav in the Revisional Survey record. Learned counsel for the appellants filed certain documents bringing on record by way of supplementary affidavit which shows that a notice issued by Anchala Adhikari, Kahalgaon against the appellants in Dakhal Dahani Case No. 05 of 2023-24 filed by Mahendra Yadav (respondent no. 1). It is further contended that from the notice itself appears that the appellants are in possession of the land in question. Learned counsel for the appellants further submits that the said Mahendra Yadav filed an application before SHO Antichak, Patna High Court SA No.429 of 2018(18) dt.13-12-2024 3/6 Bahagalpur where he specifically stated that the Second Appeal No. 429 of 2018 has been dismissed on 27.04.2023. It is further submitted that the appellant is very serious about the Status quo of the case. At the time of Admission of the present appeal, respondents were already represented by their counsel at the time of its admission, the present second appeal has been admitted. It is also submitted that the trial court has decreed the suit of the plaintiffs/appellants and the lower appellate court has reversed the finding of the trial court without assigning any reason envisaged under Order 41 Rule 31 C.P.C.. It is also submitted that if the injunction is not granted in favour of the appellants, irreparable loss would be caused as the said land was purchased by his father on 29.10.1958 and since then he is in possession i.e. for more than half a century.
4. On the other hand, learned counsel for the respondents vehemently opposed the injunction petition and submitted that the appellate court has rightly held that the sale deed dated 29.10.1958 is forged which is the final court of fact and cannot be reversed in the Second Appeal and the land in question is an agricultural land. So the injunction cannot be granted in the subject matter. Learned counsel for the respondents has also placed reliance in the case of State of Patna High Court SA No.429 of 2018(18) dt.13-12-2024 4/6 Kerala Vs Union of India reported in AIR 2024 SC (Civil) 1114 wherein the appellate court has held that:-
"granting interim relief, would be far greater than rejecting same If interim injunction was granted and suit was eventually dismissed, turning back large scale adverse effects on entire nation would be nearly impossible If interim relief is declined at this stage and plaintiff succeeds subsequently in the final outcome of suit, it can still pay pending dues, may be with some added burden, which can be suitably passed on the judgment debtor Balance of convenience, thus, lay in favour of defendant Union-Plaintiff was not entitled to interim injunction."
5. Considering the submissions and averments made by the parties, it is admitted fact that both the parties have common ancestor and only question is that the sale deed dated 29.10.1958 is in favour of the plaintiffs father or in favour of the entire family of the joint family. It is apparent from the jamabandi and Register-II, it was prepared in the name of the father of the appellants and possession of the land in question has not been denied by the defendant/respondents. So far question with regard to agriculture land is concerned, this question has been raised in the case of Byasdeo Mandal & Ors. Vs. Smt. Longi Devi & Ors. in Second Appeal No. 392 of 2009 Patna High Court SA No.429 of 2018(18) dt.13-12-2024 5/6 on 16.08.2012 relying on this Division Bench decision of the High Court wherein it has been held that it is not the practice of Patna High Court to stay delivery of possession of the properties which are either agricultural or orchard rejected the stay application filed before this court in the aforesaid Second Appeal. Against this order dated 16.08.2012 the appellant therein filed Civil Appeal No.8775 of 2013 arising out of S.L.P. (C) No.26142 of 2012. The Supreme Court granted leave and the Hon'ble Supreme Court held that having regard to the fact that Second Appeal is pending before the High Court and the appellant is in possession of the subject property, we are satisfied that if the decree of the first appellate court is allowed to be executed during pendency of the Second Appeal, the appellant may be put to irreparable loss and accordingly the Supreme Court allowed the appeal and directed that during the pendency of the Second Appeal status quo with regard to subject property shall be maintained, this view has been mentioned in the case of Noor Bandi & Ors. Vs. Ajijul Haque & Ors. reported in 2017 (2) PLJR 54.
6. Considering the decision of the Hon'ble Supreme Court as well as of this Court and submissions made by the parties, this Court is of the view that the appellants have a prima Patna High Court SA No.429 of 2018(18) dt.13-12-2024 6/6 facie case.
7. In such view of the matter, I am of the view that if the injunction is not granted, the same may cause irreparable loss to the appellants.
8. Accordingly, in the interest of justice, Status quo order is required to be passed.
9. Both the parties are directed to maintain the Status quo order with regard to the land in question.
10. Accordingly, the I.A. No. 01 of 2023 is allowed.
(Khatim Reza, J) prabhat/-
U