KAMLESH SARAN Vs. NITYANAND

JUDGEMENT

(1.) The appellants/defendants have filed this Misc. Appeal under Sec. 104 read with Order 43 Rule 1 of the Code of Civil Procedure, 1908 (in short CPC) being aggrieved by the order dtd. 25/3/2021 passed by Additional District Judge Khategaon District Dewas in COS No. 65A/2020, whereby the application under Order 39 Rules 1 and 2 of CPC filed by respondent no.1/plaintiff has been allowed.

(2.) The facts of the case in brief are that late Shri Habulal was the owner of suit land bearing survey No. 373/3, area 5.059 hectare situated at village Sandalpur. Out of the aforesaid land, a piece of land admeasuring 0.300 hectare was acquired by National Highway Authority of India for construction of road. The remaining 4.759 hectares of land was recorded in the name of respondent no.2. Respondent no.2 vide two registered sale deeds had sold the said land to the appellants. In the year 2015 an application under Sec. 178 of Madhya Pradesh Land Revenue Code (in short MPLRC) has been filed for partition before the Tehsildar who passed an order of partition vide order dtd. 27/7/2015. After a long lapse of time, late Habulal had filed an appeal against the said order of partition in the year 2019-20 before Sub Divisional Officer Khategaon and the same was allowed on 20/12/2019. Thereafter respondent no.1 filed a suit challenging the sale deeds and for permanent injunction against the dispossession alongwith an application under Order 39 Rules 1 and 2 CPC on the ground that sale deeds were executed without any sale consideration. The respondent no. 2 filed reply and respondent no. 3 to 5 orally supported the respondent no.1. After hearing both the parties the learned trial court had allowed the same application filed under Order 39 Rules 1 and 2 CPC vide order dtd. 25/3/2021. Hence this Misc. appeal has been filed before this court.

(3.) Learned counsel for the appellants contended that the impugned order is contrary to law, facts, circumstances and evidence on record. The learned trial court has failed to consider that the fact of partition between Habulal, Ganpatbai and respondent no. 2 in the year 2015 has been upheld in second appeal by the Additional Commissioner and order of Additional Commissioner has attained finality, therefore, suit land was duly mutated in the name of respondent no.2. The trial court has also failed to consider that respondent no.2 having title to the suit land and had sold the suit land to the appellants for a valuable consideration paid to him by account payee cheques and execution of sale deeds in favour of appellants is an undisputed fact. The trial court has failed to consider that there is an apparent collusion between the respondents no. 1 to 5 and a will which is a private and unilateral document is not a proof of title. He also submits that when Habulal was not having any right and title over the suit property whatever is written in the will shall neither create any title in favour of the respondent no. 1 nor is binding on respondent no. 2 and present appellants. He further submits that at the stage of deciding an application for temporary injunction, the question of validity of acquiring title, validity of the will and concluded proceedings of the partition may not be decided finally but the same has to be considered to find out prima facie case. The trial court has also failed to consider that respondent no. 2 was legally not entitled to challenge the sale deed executed by him. The trial court has also failed to consider the dishonest, collusive and fraudulent conduct of respondents no. 1 and 2 who are father and son. The appellants are bonafide purchasers and they are in possession of the suit property. The impugned order is illegal, perverse and contrary to law and the same deserves to be set aside.