CS) HIGH COURTOF_CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.Sharma.J.I Misc. ADpeal No. 40 of 2008 APPELLANTS Smt. Archana Tandan and others VERSUS RESPONDENTS Smt. Urmila Banjare and others Post for pronouncement of judgment on ^-3-2009 Sd/- T.P. Sharma Judge \^1 "^^y HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.SharmaJ.1 Misc. Appeal No. 40/2008 APPELLANTS DEFENDANTS 1T03 1. Smt. Archana Tandan, W/o Manohar Tandan, aged about 32 years, RESPONDENT PLAINTIFF 2. 3. VERSUS 1. DEFENDANT No.4 DEFENDANT No.5 3. Smt. Uttam Gahine, W/o Harish Kumar Gahine, aged about 40 years, Smt. Kiran Chandwani W/o Shri Ramesh Chandwani, aged about 35 years All R/o village Achanakpur Bhatapara, Tahsil and District Rajnandgaon, CG. Smt. Urmila Banjare W/o late Shri Rekhlal Banjare, aged about 29 years, R/o village Chanakpur, Bhatapara, Tahsil and District Rajnandgaon, CG. At present New Market Station Maroda Umer Kothi Road, near Vijay Chowk Stambh, Bhilai, Tahsil and District, Durg,CG.' Smt. Sham Bai, D/o not known,. R/o village Achanakpur, Bhatapara, Tahsil and District Rajnandgaon, CG. State of Chhattisgarh through the Collector, Rajnandgaon, CG. Mr. Gautam Khetrapal counsel for the appellants. Mr. Abhishek Sharma counsel for the respondents. MISCELLANEOUS APPEAL UNDER ORDER 43 RULE 1 OF THE CODE OF CIVIL PROCEDURE JUDGMENT (ff ^03.2009) This appeal is directed against the order dated 12.2.2008 passed by the Additional District Judge, Rajnandgaon in Civil Suit No. 10-A/2006 allowing the application filed under Order 39 Rule 1 and 2 of the Code of Civil Procedure and granting temporary injunction. w ^ 6S 5'- l^ AMnw<WA«U.- @ 2. The order is challenged on the ground that on the date of filing of the suit respondents No. 1 and 2 were not in possession of the suit property but appellants were in possession thereof. 3. Heard counsel for the parties and perused the order impugned as well as the plaint and written statement. 4. Counsel for the appellants submits that respondent No.2 Smt. Sham Bai is the widow of Jhaduram and respondent No.1 Smt. Urmila Banjare is the wife of late Shri Rekhlal Banjare and daughter of Jhaduram. Jhaduram was owner ofthe suit land along with other propertysituated at village AchanakpuR Bhatapara, Tahsil and District Rajnandgaon. After the death of Jhaduram, respondent No.2 came into exclusive possession of the suit land and being the owner thereof she sold the property to the appellants and the appellants came into possession of the suit land measuring 2.69 acres in the year 2005. Respondent No.1 is not resident of Achanakpur and she is residing at Bhilai. She was not in actual possession of the suit land. She filed a suit for declaration and injunction and the Court below has wrongly granted injunction in favour of respondents No. 1 and 2. 5. Counsel for the respondents submitted that respondent No.1 is the sole owner of the suit property and is in possession of the sSime. After the death of Jhaduram she remained in possession thereof. Respondent No.2 is having no interest over the suit property but the appellant in collusion with respondent .No.2 succeeded in getting the forged document in the year 2005 for suit property and its possession. After taking into consideration the factum of possession the Court below has granted injunction in favour of respondents No. 1 and 2 and has not committee any illegality. 6. It is revealed from the order impugned, pleadings and documents produced by the parties that the Court below granted injunction against the appellants and in favour of the respondents No. 1 and 2 on the ground that they ~"3— are daughter and mother and are in possession of the suit property after the death of Jhaduram. Paragraphs 3 to 6 of the plaint filed on behalf of respondent No.1 reveals that respondent No.2 is in possession of the suit property which was owned and possessed by Jhaduram and after the death of Jhaduram she executed the sale deed on 16.11.2005 for sale of thesuit property measuring 2.69 acres. Respondent No.1 has denied the relationship with Jhaduram but pleaded in his plaint that she is in possession of the suit land belonging to Jhaduram after his death though she has not mentioned the date of death of Jhaduram. According to the pleadings of respondent No.1 she is the daughter of Jhaduram and was married to Rekhlal Banjare and was residing at Bhilai and used to come to Achanakpur. Both the parties have filed an affidavit and claimed their possession over the suit property. Claim of possession of respondent No.1 is based on the succession as daughter. Claim of respondent No.2 is based on the registered sale deed executed on behalf of respondent No.2 on 16.11.2005. Name of the appellant has been mutated in the revenue record. Affidavit filed on behalf of both the parties reveal that respondent No.2 is in possession ofthe suit property pwned by the deceased Jhaduram prior to 2005 and she executed the sate deed in respect ofthe suit land in favour ofthe appellant in the year 2005. It appears from the documents that Sham Bai who is residing at Achanakpur was in possession ofthe suit property and executed the document although according to the case of the plaintiff/respondent No.1 she herself is not entitled to execute any document. Court below has granted temporary injunction on the ground that respondents No. 1 and 2 are the co-owners of the suit property and are entitled for one half share and without partition respondent No.1 was not competent to sell and deliver possession of the suit property to the appellants. 7. It is revealed from the impugned judgment that the suit property measuring 2.69 acres is having specific identity has been sold by respondent No.2 in favour of the appellant she parted with the possession. Both the parties -T—' -C(- are having prima facie case of title over the suit property. Affidavit and the documents filed on behalf of respondent No.2 and the appellant and the pleadings of respondent No.1 reveal that the appellants are in possession of the suit property to the extent of 2.69 acres. Possession of the appellants over the suit property is based on the registered sale deed and they are entitled to continue in possession till dismissal of the 'suit. Court below has not considered the factum of possession specifically on the ground that respondent No.1 is not permanent resident of village Achanakpur and she is residing at Bhilai, and thereby committed an illegality. 8. The order impugned granting injunction against the appellants is not sustainable and is liable to be set aside. Accordingly, the appeal is allowed. Order impugned is set aside. 9. Parties will bear their own cost. Sd/- T.P. Sharma Judge frjf ^