Patna High Court
Raj Kumar Bharatiya vs Feku Prasad Yadav on 27 June, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.972 of 2019
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Raj Kumar Bharatiya S/o Late Chiranjilal Bharatiya R/o M.G. Road, P.O. and
P.S.-Triveniganj, Distt-Supaul
... ... Petitioner/s
Versus
1. Feku Prasad Yadav Son of Late Naseeblal Yadav R/o Vill, P.O. and P.S.-
Triveniganj, Distt-Supaul
2. Pallav Kumar Agarwal S/o Rajkumar Agarwal R/o Triveniganj Bazar, P.O.
and P.S.-Triveniganj, Distt-Supaul
3. Smt. Kiran Devi W/o Rajkumar Agarwal R/o Triveniganj Bazar, P.O. and
P.S.-Triveniganj, Distt-Supaul
4. Binay Kumar Bharatiya S/o Late Ram Bilash Bharatiya R/o Triveniganj
Bazar, P.O. and P.S.-Triveniganj, Distt-Supaul
5. Keshav Kumar Bharatiya S/o Late Ram Bilash Bharatiya R/o Triveniganj
Bazar, P.O. and P.S.-Triveniganj, Distt-Supaul
6. Hemant Kumar Bharatiya S/o Late Ram Bilash Bharatiya R/o Triveniganj
Bazar, P.O. and P.S.-Triveniganj, Distt-Supaul
7. Most. Sharda Devi W/o Late Ram Bilash Bharatiya R/o Triveniganj Bazar,
P.O. and P.S.-Triveniganj, Distt-Supaul
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Anshu Raj Singh, Advocate
Mr. Parth Gaurav, Advocate
Ms. Shambhavi Shankar, Advocate
For the Respondent/s : Mr. Sadashiv Tiwari, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 27-06-2025
Heard the learned counsels for the parties and I intend
to dispose of the present petition at the stage of admission itself.
02. The petitioners has challenged the order dated
25.05.2017
passed by the learned Sub Judge-I, Supaul in Title
Suti No. 205 of 2014 whereby the application dated 08.07.2014
filed on behalf the plaintiff under Order XXXIX Rule 1 & 2 of
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the Code of Civil Procedure (for short ‘the Code’) has been
rejected. Further challenge is to the order dated 05.03.2019
passed by the learned Additional District Judge-I, Supaul
whereby the miscellaneous appeal filed by the plaintiff/appellant
under Order XLIII Rule 1(r) of the Code challenging the order
dated 25.05.2017 passed by the learned Sub Judge in Tile Suti
No. 205 of 2014 has been rejected.
03. Learned counsel for the petitioner submits that
Title Suit No. 205 of 2014 was filed by the plaintiff/petitioner
for declaration of right title and possession over the land
mentioned in Schedule-2 of the plaint. Further declaration was
sought for possession of the plaintiff over 11 katha 09 dhur and
10 dhurki of land mentioned in Scheduled-2 of the suit property
excluding 02 dhurs of land from the North-Eastern portion over
which the defendant no. 1 is in possession and also for recovery
of possession over the said 02 dhurs of land. Apart from that the
plaintiff prays for setting aside the sale deeds dated 04.12.2012,
26.12.2012, 24.03.2013, 30.08.2013 executed in favour of the
defendant no. 1, sale deed dated 04.12.2012 executed in favour
of defendant no. 2 and sale deeds dated 26.12.2012 and
24.03.2013 executed in favour of defendant no. 3. Learned
counsel further submits that there had been a partition in the
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family of the plaintiff in which separate shares were allotted in
the name of father of the plaintiff and his uncles. The said
partition took place on 16.12.1974. Learned counsel further
submits that one Parameshwar Lal Bharatiya was one of the
ancestors of the parties, who was having two sons Ram Bilash
Bharatiya and Chunni Lal Bharatiya and defendant/respondent
nos. 4, 5 and 6 are sons of Ram Bilash Bharatiya. Parameshwar
Bharatiya got the land of new Khesra No. 10835. Subsequently,
father of the plaintiff and his three sons came into possession
over 03 bighas 09 katha and 17 dhurs of land of new Khesra
No. 10853 (old Khesra No. 6560). Thereafter, in the year 1981-
82, another partition took place between the father and brothers
of plaintiff. Subsequently, property mentioned in Schedule-I of
the plaint was allotted in the share of plaintiff and the plaintiff
came into peaceful possession over the said land and got his
name mutated over the same. After this partition, when the
plaintiff was out of station, the defendants 3 rd and 4th set, in
collusion with the local authorities, got a 10 feet soling road
constructed from the main road up to the plot of the plaintiff in
the northern side of his plot due to which area of plaintiff was
reduced by 1 katha 04 dhurs and his plot got separated in two
parts but the same was compensated from the land adjacent to
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the plaintiff which was in the share of the father of the plaintiff.
Thereafter, the defendants 3rd and 4th set executed some sale
deeds and defendant no. 1 deliberately, by use of force, took
possession over 02 dhurs of land.
04. Learned counsel further submits that in the title
suit, the defendants appeared and filed their written statement
and during pendency of the suit, started construction over the
part of the disputed land, then the plaintiff filed application
under Order XXXIX Rule 1 and 2 of the Code on the ground
that defendant no. 1 is making construction over the part of
disputed land which would change the nature of the suit
property. In the rejoinder, defendant nos. 1, 4, 5 and 7 denied
about making any kind of construction over any portion of the
suit property. Thereafter, on the application of the plaintiff, the
court ordered for appointment of the Advocate Commissioner
who went on the spot and submitted detailed report contending
that the construction is going on over the part of the disputed
land. However, the learned trial court rejected the application of
the plaintiff vide order 25.05.2017. The said order was
challenged by the plaintiff by filing Misc. Appeal No. 03 of
2017, which was also dismissed vide order dated 05.03.2019.
Both these orders are under challenge before this Court.
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05. Learned counsel further submits that while
rejecting the application of the plaintiff, the learned trial court
held that there was no prima facie case or balance of
convenience in favour of the plaintiff and no loss will be caused
to the plaintiff, if injunction was not granted. However, the
learned trial court failed to appreciate that mutation is in the
name of the plaintiff and from the report of the learned
Advocate Commissioner, it was clear that some construction
was going on over the part of the disputed land, resulting in
change of the nature of the suit property. Learned trial court
further failed to appreciate that even the rent receipt with respect
to the land in dispute has been issued by the revenue office in
the name of the plaintiff. Learned counsel further submits that
both the courts failed to appreciate that the application for
injunction was with respect to complete suit property and not
restricted to area of 02 dhurs. The defendants are in negotiation
with the person of the locality to sale the disputed plots which
would unnecessarily create third party interest and would
increase complexity in the suit. Learned counsel further submits
that defendants were sold the suit property, who acquired no
right and title over the suit property as the sale deeds executed
by the vendors, without any right and title over the suit property,
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are null and void. If the defendants are not stopped from
changing the nature of the suit property, the same would cause
serious prejudice to the plaintiff and would result in irreparable
loss to the plaintiff, as the plaintiff is having right and title over
the suit property and mutation also exists in his name and rent
receipts are being issued to him. The suit filed by the plaintiff
raises some triable issues and for this reason, prima facie case is
in favour of the plaintiff. If injunction is not granted, the
petitioner/plaintiff would suffer irreparable loss/injury and
therefore, balance of convenience lies in favour of the plaintiff.
Hence, the orders passed by the learned subordinate courts are
not sustainable and and the same need to be set aside.
06. Learned counsel appearing on behalf of the
respondents vehemently contends that there is no infirmity in
the impugned orders and the same do not need any interference
by this Court. Learned counsel further submits that the
plaintiff/petitioner has challenged the concurrent findings of two
courts on his application filed under Order XXXIX Rules 1 and
2 of the Code and this Court is not supposed to disturb the
concurrent findings of courts below in its supervisory
jurisdiction under Article 227 of the Constitution of India.
Learned counsel further submits that Parameshwar Lal
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Bharatiya got 04 Bigha 07 katha 06 dhurs land of old Khesra
No. 6560 in suit land from ex-landlord. Parameshwar Lal
Bharatiya partitioned the said property and gave 01 Bigha 03
katha 13 dhurs each to his two sons and retained 02 Bigha
himself. Though the sons sold their lands, Parameshwar Lal
Bharatiya did not sell his land and after his death his two sons
came into posession of 01 Bigha each. Out of this land, the
defendants sold the suit land to defendant/respondent no.1.
Thus, the defendants are in possession and this fact has been
admitted by the plaintiff and for this reason, no prima facie case
is made out for injunction. The mutation has also been done in
the name of the defendants and they have been coming into title
and possession over the suit property. The defendant no. 1
purchased 10 katha land and out of this 10 katha, 02 katha each
from Chunnilal Bharatiya, Vinay Kumar Bharatiya and Hemant
Kumar Bharatiya and 04 katha from Keshav Kumar Bharatiya.
The defendant no. 1 has constructed his house over 2 and ½
katha land and also constructed a boundary wall over the same.
This fact is also confirmed from the report of learned Advocate
Commissioner who observed that an old boundary wall has been
existing on the suit property along with an iron gate. Both the
subordinate courts have considered the facts of the case and
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finding neither any prima facie case nor any balance of
convenience in favour of the plaintiff and also observing that no
irreparable loss was going to be caused to the plaintiff, rightly
rejected his prayer for injunction. Therefore, the orders of the
learned subordinate courts need no interference by this Court.
07. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
08. Evidently, concurrent findings of two courts on
point of injunction have been assailed before this Court in the
present petition. Normally, the High Courts does not interfere
with concurrent findings of fact made by two subordinate courts
unless those findings are deemed perverse or based on an error
of law. This principle is rooted in the idea that appellate courts
should not lightly interfere with the decisions of lower courts,
especially when those lower courts have reached the same
conclusion based on the evidence presented.
09. The Hon’ble Supreme Court in the case of
Prakash Harishchandra Muranjan Vs. Mumbai Metropolitan
Region Development Authority and Another, reported in
(2009) 3 SCC 432, declined to interfere when prayer for
injunction was concurrently refused by two courts and held that
it could take a different view only if the judgment of the court
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below was found to be perverse. Thus, only exception is
perversity or apparent illegality in the impugned orders on the
face of record. In the impugned order, I do not find any such
perversity or outright illegality. The plaintiff/petitioner claimed
title and possession over the suit property but at the same time,
he has admitted the possession of defendant no. 1 over certain
portion of the land. The other defendants are the co-sharers
though there may be varying claim about the shares of different
branches and their possession. But, these are matters to be
thrashed out at the stage of trial and could not be gone into at
the stage while considering injunction application. If claim is
based on partition of joint family property and there is rival
claim about allocation of share, merely because the plaintiff has
filed a case does not mean that he is having a prima facie case
when, admittedly, the defendants are in possession over the
certain portion of suit land. Further, when it has come in the
report of the learned Advocate Commissioner about already
existing boundary wall and gate, making a submission in the
injunction application about defendant constructing a boundary
wall is not a correct averment. If the defendant no. 1 is in
possession, his possession could not be lightly interfered with
by granting injunction.
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10. Therefore, in the light of discussion made here-in-
before, I am of the considered opinion that the learned
subordinate courts have rightly proceeded in the matter and
there appears no error of jurisdiction while passing the
impugned orders dated 25.05.2017 and 05.03.2019 and hence,
the same are affirmed.
11. Accordingly, the present petition stands dismissed.
12. Since the title suit is pending since 2014, i.e.,
more than 10 years have elapsed, the learned trial court is
directed to expedite the trial and try to conclude the same at the
earliest, without granting unnecessary adjournment to either of
the parties. It is expected that the parties will not seek
unnecessary adjournments and will co-operate towards disposal
of the case.
(Arun Kumar Jha, J)
Ashish/-
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