Patna High Court - Orders
Bimla Devi & Ors vs Gyani Paswan & Ors on 9 May, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court FA No.88 of 2011 (7) dt.09-05-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.88 of 2011
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Bimla Devi & Ors
.... .... Appellant/s
Versus
Gyani Paswan & Ors
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Arvind Kumar Sharma
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV ORDER
7 09-05-2012Heard the learned counsel Mr. Pramod Kumar Sinha on behalf of the appellants, the learned counsel Mr. Prakash Kumar on behalf of the respondent 1st party, the learned counsel Mr. Chhotelal Narayan Singh on behalf of the cross objector and the learned counsel Mr. Ravi Bharadwaj on behalf of the other respondents on the Interlocutory Applications No. 7369 of 2011 and 3190 of 2012.
I.A. No. 7369 of 2011 :- This application has been filed by the appellants under Order 39 Rule 1 and 2 of the Code of Civil Procedure praying therein to pass an interim injunction against the respondent No.1.
The learned counsel for the appellants submitted that the appellants are in possession of the suit property after purchase through the sale deeds dated 1.8.2005 and 20.2.2003 Ext.2 and 2/A. The appellants have come to know that the defendant Patna High Court FA No.88 of 2011 (7) dt.09-05-2012 respondent No.1 is trying to alienate the suit property with others. So far alienation is concerned, the learned counsel appearing on behalf of the respondent No.1 submitted that the respondent No.1 is not desirous of transferring the suit property during the pendency of the appeal. So far possession is concerned, the learned counsel for the respondent No.1 submitted that the respondent No.1 is in possession of the suit property therefore, no injunction can be granted restraining the respondent No.1 from interfering with the possession of the appellant.
It appears that the plaintiff appellants have filed the suit for declaration of title and recovery of possession of the suit land detailed in schedule B of the plaint. By the impugned judgment the trial court found that the plaintiff vendor had no title and therefore, the plaintiffs have got no title or possession over the suit property. Accordingly, the suit has been dismissed. Now, therefore, if any injunction is granted regarding possession in favour of the appellants it will amount to setting aside the finding of possession and title recorded by the trial court. Without recording any prima faice finding that the appellant is in possession, in my opinion, the respondent No.1 cannot be restrained from disturbing the possession of appellants. Prima facie the finding of the court below is in favour of the respondent Patna High Court FA No.88 of 2011 (7) dt.09-05-2012 No.1. The plaintiff has also prayed for recovery of possession . From perusal of the injunction application it appears that after narrating the case of the parties and merit thereof it has been mentioned that the appellants have come to know that the respondents are trying to sell the property. Except this statement there is nothing on record to rely on this statement and moreover the learned counsel for the respondents submitted that the respondent No.1 is not desiring to sell the property. In view of the above facts and circumstances of the case and in view of the submission of the learned counsel for the respondent No.1, I do not find any merit in this injunction application. Accordingly, the interlocutory application No. 7369 of 2011 filed by the appellant is hereby rejected.
I.A. No. 3190 of 2012 :- This interlocutory application has been filed by the respondent No.5 who has filed a cross-objection under Order 41 Rule 22 praying therein to restrain the respondent No.1 from interfering with peaceful possession and occupation of the suit property. As stated above this respondent No.5 is the vendor of the appellants. In the impugned judgment it has been found by the trial court that the vendor had also no title to transfer. At the instance of the appellants when no injunction has been granted how can the injunction can be granted at the Patna High Court FA No.88 of 2011 (7) dt.09-05-2012 instance of respondent against the respondent particularly, when no relief has been claimed by respondent No.5 against the respondent No.1. In the said application it is also prayed that the operation of the impugned judgment and decree be stayed. So far this prayer is concerned also it cannot be granted at the instance of a defendant who has not even filed appeal challenging the decree and moreover it is not the practise of Patna High Court to stay the operation of the judgment and decree. Therefore, I find no merit in this interlocutory application also. Accordingly, this interlocutory application No. 3190 of 2012 is also rejected.
(Mungeshwar Sahoo, J) S.S.