PRAVAKAR MISRA Vs. CHINTAMANI MISHRA

JUDGEMENT

(1.) The defendants have filed this appeal against the confirming decisions of the Courts below decreeing the plaintiff's suit for permanent injunction.

(2.) THERE is no dispute that the disputed plot Nos. 4820, 4821 and 4822 along with another plot had been purchased in the name of defendant No. 1 on 24 -6 -1949. According to the plaintiff's case the disputed property fell to the share of defendant No. 1 in a family partition. In 1972 one Brahmananda Naik had filed O. S. No. 273 of 1972 against defendant No. 1 for realisation of money which was decreed in favour of said Brahmananda Naik in Execution Case No. 117 of 19 76 the suit land was attached and in auction, the same was purchased by the decree -holder, Brahmananda Naik, himself. As the said Brahmananda Naik expired during the pendency of the execution case, his legal representatives got delivery of possession through Court on 11 -2 -1979. Subsequently, the said property was purchased by the plaintiffs by a registered document from the legal representatives of Brahmananda Naik on 26 -12 -1976. Since the defendants created disturbances in the possession of the plaintiffs, a suit for injunction was filed in the year 1980.

(3.) THE trial Court came to hold that the defendants had sufficient knowledge about the pendency of the execution case as notice had been served. Though the trial Court held that the valuation of suit property could not be less than Rs. 10,000/ -, yet it negatived the plea of the defendants regarding the alleged fraud and held that the auction sale was legal, valid and binding on the defendants. The trial Court further held that disputed plots had been purchased in the name of defendant No. 1, the same had been treated as joint family property and in a partition in the year 1960 the disputed plots 4820 and 4821 fell to the share of defendant No. 1, but plot No. 4822 continued as joint family property. ft was held that defendants 2 to 4 had three -fourth interest in the said plat No. 4822 corresponding to hal plot No. 5554, but as the defendants did not file any application under Order 21, Rule 90, CPC, it was not open to them to contend that the action sale was not binding on their interest. It was further found that there was valid delivery of possession and there was no fraud in the execution proceeding. The claim of the defendants that there was partition for the first time only in the year 1976 was negatived. It was also held that the suit was not barred under the provisions of the Consolidation of Holdings and Prevention of Fragmentation of Land Act. Accordingly, the suit was decreed.