Court No. - 5
Case :- FIRST APPEAL FROM ORDER No. - 2456 of 2017 Appellant :- Nawal Kishore & 10 Others Respondent :- Vinod Mishra & 4 Others Counsel for Appellant :- Siddharth Nandan Counsel for Respondent :- Shahid Ali Siddiqui,Shamsuddin Ahmad
Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Salil Kumar Rai,J.
We have heard Sri Siddharth Nandan, learned counsel for the plaintiffs-appellants and Sri Shamsuddin Ahmad, learned counsel for the defendants-respondents. With their consent the matter is taken on the Board for final disposal in terms of the Rules of the Court.
The plaintiffs-appellants instituted a civil suit no. 167 of 2016 for permanent injunction restraining the defendant herein from interfering in possession over arazi no.446, 447 and 448 (new number 623). The case of the plaintiff is that on 23.05.1907 and 16.12.1908 lease deeds were executed in favour of appellants' ancestor Sri Sukhdeo Das alias Sukhdeo Ram and since then they are in possession uninterruptedly. It is stated that in 1978 for the first time assessment of the construction was made by Nagar Palika Parishad & subsequently house no.54 was allotted by Nagar Nigam. Appellants have stated that they are paying house & water tax regularly.
On the basis of material record the trial court has recorded that the plaintiffs have made out a prima facie case. The trial court has found that the names of the defendants-respondents were not recorded in the revenue records. Accordingly, the trial court passed an order directing the parties to maintain status quo over the land in dispute. Aggrieved by the order of the trial court the plaintiff-appellants have preferred the instant First Appeal From Order.
The learned counsel for the plaintiffs-appellants submits that once the trial court is satisfied that the possession over the property is of the plaintiffs-appellants, it ought to have passed the order restraining the defendants-respondents not to interfere in the peaceful possession of the plaintiffs-appellants.
The learned counsel for the appellant has drawn our attention to an agreement to sell dated 25.09.2017 executed by the defendant-respondents in favour of Nagendra Singh for a consideration of Rs.1.0 crore. It is stated that defendant- respondents have received a part of consideration. The learned counsel for the plaintiffs-appellants submits that the defendants- respondents are likely to alienate the property and create third party right in the property in dispute. This appeal was filed in the year 2017. Now their apprehension came to be true in view of the agreement to sell executed by the defendant-respondents in spite of the order of status quo passed by the trial court.
Learned counsel for the defendants-respondents submits that no third party interest has been created and the apprehension of the appellants-plaintiffs is misconceived. He further submits that the defendants-respondents are maintaining the status quo order. Learned counsel for the defendants-respondents further submits that from the perusal of the status quo order it is evident that the court has especially restrained the defendants- respondents in respect of the physical possession of the property and by executing the agreement to sell it does not affect the satus quo.
We have heard the learned counsel for the parties and perused the record.
The trial court has elaborately dealt with the evidence on record and has recorded the finding regarding prima facie case and balance of convenience in favour of the plaintiffs-appellants.
The learned counsel for the defendants-respondents has failed to satisfy us that the findings of trial court suffer from any illegality/perversity. As such we are of the view that there is no illegality in the order of the trial court.
However, having regard to the facts of the case we find that after filing the instant First Appeal From Order, agreement to sell has been executed by the defendants- respondents.
Accordingly, we are of the view that the suit be decided by the trial court expeditiously.
Both the parties are restrained from creating any third party interest in the land in dispute till the decision of the civil suit.
Accordingly, the appeal is disposed of.
Order Date :- 30.10.2018 MAA/-