TILESHWAR SINGH Vs. SURESH PRASAD SINGH

JUDGEMENT

(1.) THIS revision petition has been preferred against the order dated 21.11.1998 passed by the 4th Additional District Judge, Vaishali at Hazipur debarring the grant of ad -interim injunction by the Munsif lst, Hazipur in Title Suit No. 60 of 1996. Such refusal has been recorded in the Misc. Appeal No.14 of 1998 preferred by Opposite party No.2.

(2.) THE facts of the case run in a narrow compass. The disputed land stands over plot No.265 Khata No. 398 of Hazipur measuring 1 katha out of which 5 1/2 Dhurs are only of real dispute. The lands belonged to defendant Opposite party No.1 Suresh Prasad Singh who sold different portions of same plot to different persons. According to the Plaintiff -petitioner he mortgaged 5 1/2 dhurs with shop thereupon to the plaintiff 'sfather vide registered mortgaged bond dated 23.6.1970 and put him in possession. The mortgaged bond was for a sum of Rs.3000/ - and it was a usufructuary mortgage for specific period of five years. On the death of the plaintiff 'sfather plaintiff petitioner came in possession. Admittedly the defendant No.1 executed a Mahadanama prior to the mortgage in the year 1969 in favour of defendant No.2. On the basis of that Mahadanama suit for specific performance being Title Suit No.57 of 1971 was filed by defendant No.2 against defendant No.1. The suit was ultimately decreed. In that Mahadanama admittedly the plaintiff was a witness and in the suit also he deposed and deposited his mortgaged bond and the suit was decreed and appeal was preferred by the defendant No.1 but the appeal was also dismissed. Then the defendant No.2 put the decree in execution in execution case No.3 of 1986 and in that execution case sale deed was executed by the Court in favour of the defendant No.2 on 19.1.1987 on behalf of defendant No.1. Then the decree -holder defendant No.2 sought for delivery of possession. The plaintiff then filed the present suit being Title Suit No.60 of 1996 seeking a declaration that defendant No.1 had no right to take possession over disputed 5 1/2 Dhurs of land without redeeming his subsisting mortgage deed and the mortgagee plaintiff cannot be bound by a decree passed in Title Suit No. 57 1971 or the appellate decree passed in First Appeal No.27 of 1986. A prayer for permanent injunction was also made restraining the defendant No.2 from taking over possession over 5 1/2 Dhurs of land which was mortgaged in favour of the plaintiff petitioner by the defendant No.1. Objection was filed and according to the defendants the money was already paid to the plaintiff of the mortgaged bond on a photo copy of the registered mortgaged bond but that was disbelieved by all the Courts and a temporary injunction was granted in favour of the plaintiff petitioner. Against that appeal was preferred by the defendant no. 2 and the appellant Court reversed the order of injunction holding that the plaintiff was a subsequent mortgagee while Mahadanama was executed long before the mortgaged bond and it was within the knowledge of the plaintiff, and, as such, balance of convenience was held to be not in favour of the plaintiff nor the primafacie case and, as such, injunction order has been reversed. On a revision being preferred by the plaintiff petitioner the same was once heard by this Bench in the absence of the petitioner 'scounsel as he was not found in the Court and the Revision petition was disposed of with a direction that the Opposite party shall deposit the Bharna amount by tendering it to the plaintiff in the Court below within three weeks next and after such tendering the Opposite party shall be at liberty to take possession through execution proceeding but by filing a restoration petition the order was passed by this Court was kept in abeyance and the revision petition has again been heard at the admission stage itself.

(3.) IN the facts and circumstances of the case, no order as to costs.