RAMESHWAR SINGH RAJPUT Vs. HARINAYRAYAN SEN

JUDGEMENT

(1.) In this petition filed under Article 226 of the Constitution, the petitioners have assailed the order passed by the trial Court on 14.10.2015 (Annexure-P/2), whereby application filed by the respondent-plaintiff under order 39 Rule 1 & 2 of the Code of Civil Procedure was allowed. The petitioners are also aggrieved by the order dated 18.01.2016 (Annexure-P/1), whereby their miscellaneous appeal filed under Order 43 Rule 1 of the Code of Civil Procedure has been rejected by the Courts below.

(2.) Shri Prashant Singh, learned counsel for the petitioner criticised the said order. It is submitted that a sale deed dated 19.12.1985 was initially executed in favour of the respondent-plaintiff. However, the petitioners did not comply with the provisions of the bye-laws of society and did not make any construction within the stipulated time. Thus, as per condition No.1 of the sale deed (AnnexureP/10) read with bye-laws of the society (Page 57), the sale deed stood automatically cancelled and the petitioners got the possession. Thereafter, by way of sale deed dated 27.06.2015, the same property was sold in favour of defendant No.3. Shri Singh submits that in view of specific condition in the sale deed and as per the provisions of the bye-laws, the earlier sale deed dated 19.12.1985 does not create any right or title in favour of plaintiff. In addition, it is submitted that the defendant No.3 is in possession of the suit property. The petitioners while filing reply to the application filed under Order 39 Rule 1 & 2 of the Code of Civil Procedure took certain serious objections and filed ample documents to show that the plaintiff has no right over the property. The revenue entries, Municipal record, bank loan and affidavits filed by the petitioners with the said reply show that the defendant No.3 is in possession.

(3.) Shri Prashant Singh submits that the Court below has erred in placing reliance on earlier sale deed dated 19.12.1985. The petitioners' specific contentions and documents were not considered. The affidavit of the plaintiff was treated as gospel truth. He also criticized the order of appellate Court dated 18.01.2016, whereby his appeal was rejected.