NARAYAN PRASAD PANDEY Vs. OM PRAKASH MAHENDRA

JUDGEMENT

(1.) By this petition the petitioner Prakash Rai has challenged order dated 29-7-2005 passed by Additional District Judge (Fast Track Court) Amarpatan, District Satna in Miscellaneous Civil Appeal No. 10/2005 rejecting the application for temporary injunction under Order 39, Rule 1 and 2 of the Civil Procedure Code.

(2.) Brief facts of the case are that agricultural land bearing No. 207, area 1-87 situated in Village Parsiya, Tahsil Amarpatan, District Satna was sold by the petitioner's brother Rajendra Kumar Pandey to the respondent Om Prakash Mahendra by registered sale deed. The petitioner contended that there stood 107 engrafted trees of mango planted by the petitioner on the said land whose value was not less than Rs. 10 lacs as the trees bore fruit of a rare species of mangoes and at the time of registration of the sale deed it had been told to the respondent that the mango trees were not being sold and they were not mentioned in the sale deed dated 4-11 -2003 (Annexure P/4). That the land was mutated alongwith the trees mentioned in the revenue records in favour of the respondent Om Prakash Mahendra and being aggrieved after making proper protest before the Naib Tahsildar, Amarpatan who passed an order against the petitioner, the petitioner filed Civil Suit No.133A/2004 before the First Civil Judge, Class II. Amarpatan, District Satna on 6-12-2004 for declaration and perpetual injunction alongwith the application for temporary injunction under Order 39, Rule 1 and 2 of the Civil Procedure Code to protect the special species of mango trees planted by him. The petitioner's application for temporary injunction was refused by the Trial Court by order dated 8-2-2005 (Annexure P/2). The petitioner preferred appeal before the Additional District Judge (Fast Track Court) Amarpatan, District Satna registered as Miscellaneous Civil Appeal No. 10/2005 which also dismissed the appeal by the order dated 29-7-2005 (Annexure P/1) impugned in this petition.

(3.) Considering the submissions of the counsel for the petitioner we find no infirmity in the order passed by the Appellate Court below. Both the Courts below have observed that there was no evidence produced to demonstrate that the trees belonged to the petitioner at the time of partition between the brothers neither there was any right and titled vested in the petitioner. The Appellate Court has correctly observed that Section 8 of the Transfer of Property Act, 1980 reads as under :