BAIDYA NATH MAHTO Vs. DHANNU YADAV

JUDGEMENT

(1.) The present appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') has been preferred against an order dated 21-07-2011 passed by learned Sub-Judge-IV, Bettiah, West Champaran (hereinafter referred to as 'Sub-Judge') in Title Suit No. 261 of 2009, where by, learned Sub-Judge has dismissed the petition filed on behalf of plaintiff/appellant under Order 39 Rule 1 & 2 read with Section 151 of the CPC, where by the plaintiff/appellant had prayed for grant of ad-interim and temporary injunction by restraining respondents 1 st Party/defendants 1 st Party from interfering with the possession of the plaintiff/appellant over the suit land mentioned in schedule-II (hereinafter referred to as 'suit property') till the disposal of the suit.

(2.) Short fact of the case is that the plaintiff/appellant had filed a suit, vide Title Suit No. 261 of 2009 before the court below for declaring the sale-deed dated 18-09-2009 executed by defendant 2nd set/respondent no. 5 as forged on the ground that the respondent no. 5 was having no right for executing sale-deed in respect of the suit property since the defendant had already attested deed of gift as well as registered sale-deed, which were executed in the year 1979 in respect of the suit property and as such, the sale-deed in question according to the plaintiff/appellant was void ab initio. In the suit, the plaintiff- appellant had also prayed for grant of permanent injunction by restraining the defendants 1st party i.e. respondent nos.1 to 4 from interfering with the peaceful possession of the plaintiff/appellant. Since during the pendency of the suit, the defendants 1st party, on the strength of alleged sale-deed of the year 2009, started unnecessary trouble in peaceful possession of the plaintiff/appellant over the suit land, the plaintiff/appellant filed a petition on 05-09-2010 for grant of temporary injunction, restraining defendants 1st party from interfering with the peaceful possession of plaintiff/appellant over the suit land. It was pleaded that father of the plaintiff/appellant, namely; Parmeshwar Mahto died in the year 1969, leaving behind him plaintiff (Baidya Nath Mahto), his brother (Jagdish Mahto) and one daughter, namely; Phuljhari Devi. After the death of Parmeshwar Mahto, partition took place in between the plaintiff, his brother (Jagdish Mahto) and his sister (Phuljhari Devi). In the said partition, Phuljhari Devi got 17 Katha of land in her share and she took possession over the same. Plaintiff's brother, Jagdish Mahto was having only one daughter namely; Binda Devi, who is defendant 2nd party/respondent no. 5 in the present appeal. It was pleaded that though in the share, Jagdish Mahto was to get 03 Bigha, 09 Katha 18 1/2 Dhurs of land, but amicably, he had accepted for 03 Bigha and 15 1/2 Dhurs of land and rest of the land was left for the share of the plaintiff/appellant. After partition had taken place, brother of the plaintiff/appellant, namely; Jagdish Mahto died in the year 1970, leaving behind his wife Panmati Devi, and daughter Binda Devi (respondent no. 5/ defendant 2nd party). After the death of his brother, the plaintiff-appellant solemnized marriage with his brother's wife (Panmati Devi) and she started to live with the plaintiff/appellant as his wife. From the wedlock of plaintiff (Baidya Nath Mahto) and Panmati Devi, three sons, namely; Ravindra Mahto, Brajesh Mahto and Srikant Mahto and two daughters, namely; Usha Devi and Sheema Devi were born. It has also been pleaded that respondent no. 5 was married in a rich family. In her marriage, the plaintiff-appellant spent money like his own daughter. Further case of the plaintiff is that Panmati Devi in respect of share of her husband, namely Jagdish Mahto had gifted 02 Bigha, 01 Katha and 17 1/2 Dhurs of land with the consent and attestation of Binda Devi (respondent no. 5), and executed registered deed of gift on 20-12-1979 in favour of Ravindra Mahto, who was born out of wedlock of plaintiff/appellant with Panmati Devi. On the same date, defendant 2nd party/respondent no. 5 executed registered sale-deed in favour of Ravindra Mahto in respect of her 18 Katha & 18 Dhurs of land. Accordingly, Panmati Devi as well as Binda Devi (respondent no. 5) transferred entire land of Jagdish Mahto by registered deed of gift as well as sale-deed in favour of son of the plaintiff/appellant, Ravindra Mahto and since then, the plaintiff/appellant was coming in peaceful possession over the said land i.e. suit property. However in the year 2009, the plaintiff noticed that by forged registered sale-deed dated 18-09-2009, the defendant 2nd party/respondent no. 5 transferred the suit property, which was already transferred to the son of the plaintiff (Ravindra Mahto) in the year 1979, in favour of defendants 1st party i.e. respondent nos. 1 to 4. Since after sale-deed, which was executed in the year 2009 by a person having no right and title over the suit land, the respondent nos. 1 to 4 started disturbing the plaintiff/appellant in his peaceful possession of the suit land. Even after filing of the suit for declaring the forged sale-deed as void, the plaintiff/appellant filed petition under Order 39, Rule 1 & 2 read with Section 151 of the CPC, specifically mentioning therein that the respondent no. 5 (Smt. Binda Devi) had duly attested the deed of gift dated 20-12-1979 and she herself had sold 18 Katha & 18 Dhurs of land through registered sale-deed and also the suit land was continuing in the actual physical possession of the plaintiff, as rightful owner. The defendants/ respondents filed their show cause (copy of same has been brought on record as Annexure-3'to the petition). The defendants/ respondents opposed the prayer for grant of temporary injunction.

(3.) Learned Sub-Judge after hearing the parties by order dated 21-07-2011, the order which is impugned in the present appeal, has rejected the same, which is under challeng in the present appeal.