Court No. - 53
Case :- SECOND APPEAL No. - 1099 of 2019 Appellant :- Yatendra And 02 Others Respondent :- Naresh @ Narendra Kumar And Another Counsel for Appellant :- Rahul Mishra,Abhishek Mishra Counsel for Respondent :- Amit Kumar
Hon'ble Vivek Agarwal,J.
Heard Sri Rahul Mishra, learned counsel for the appellants and Sri Amit Kumar, learned counsel for the respondents.
This Second Appeal has been filed by the plaintiffs-appellants under the provisions of Section 100 of the Code of Civil Procedure being aggrieved by the judgment and order dated 07.09.2019 passed by the Additional District Judge, F.T.C. Shamli, situated at Kairana in Civil Appeal No.23 of 2011, Yatendra and others Naresh @ Narendra Kumar and another affirming the judgment and order dated 05.03.2011 passed by the Civil Judge (Sr. Division), Kairana, District-Muzaffar Nagar in original Suit No.58 of 1994.
It is an admitted position that plaintiffs had filed a suit seeking permanent injunction against the defendants. Sri Aman Singh had two sons namely Dharampal and Satpal. Appellants-plaintiffs are sons of Satpal whereas defendants are sons of Dharmpal. Earlier, there was a dispute as to whose favour Aman Singh had executed a Will but since facts of the present suit are limited to whether the plaintiff was in possession of the suit land and further whether the defendants were interfering in peaceful possession of the suit land contained in Survey No.1047/02 measuring 13 biswas, Khasra Nos.1031, 1032, 1033, 1034, 1035, 1036, 1038, 1038, 1040 or not.
Trial Court recorded a finding that plaintiffs could not prove their possession over the disputed land and therefore they are not entitled to the relief of permanent injunction and dismissed the suit.
The plaintiffs-appellants raised a ground that since a Commissioner's Report was in their favour showing their possession on the disputed land in question, therefore Trial Court erred in overlooking such Report of the Commissioner and recorded a perverse finding. However, the first Appellate Court taking a note of the fact that provisions contained in Order 26 Rule-9 of Code of Civil Procedure have limited application for which purposes, Commission can be appointed to make local investigation and that does not include recording a finding of fact as to who is in possession of the suit land, affirmed the judgment and decree passed by the Trial Court holding that plaintiffs have failed to prove their possession over the suit land, entitling them to claim relief of permanent injunction.
Learned counsel for the appellants, submits that both the Courts below had erred in construing the validity of a subsequent Will. It is submitted that admittedly a registered Will was executed by Aman Singh in favour of sons of Dharampal. Thereafter, this Will was cancelled through a unregistered Will and Aman Singh had bequeathed all his property in favour of sons of Satpal. But the Trial Court erred in recorded a finding that since the subsequent Will was not a registered Will therefore a registered Will could not have been cancelled through a registered Will.
Placing reliance on such discussion, it is submitted that Trial Court proceeded on a wrong premise and therefore declined to grant relief of permanent injunction.
A bare perusal of the suit as was filed by the plaintiff reveals that no dispute as to the validity of any of the Wills is subject matter of the suit. Suit has been filed only to seek permanent injunction in regard to preventing the defendants from interfering in the peaceful possession of the plaintiffs. Therefore even if for the purpose of discussion, some reference has been made to the Wills, that will be not core to the subject matter of the suit but can only be treated as peripheral. However, the facts remains that the core to the suit is as to whether plaintiffs were in possession of the land over which they alleged interference in the hands of the defendants and in a suit for injunction there was no need to determine the title, in fact possession was required to be seen and therefore Trial Court recorded a finding that plaintiffs failed to prove their possession over the suit land, refused to grant relief of permanent injunction.
This finding has been rightly affirmed by the first Appellate Court, does not call for any interference. We are not persuaded by such peripheral material like validity of the Will etc., which was not subject matter of the suit. Therefore, The Second Appeal fails and is, accordingly, dismissed.
Order Date :- 26.11.2019 Ashutosh