IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.294 of 2005
JITENDRA SINGH & ORS
Versus
LALLA SINGH
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25. 06.10.2010 Heard Mr. B. N. P. Singh, the learned counsel on
behalf of the appellant and Mr. J. S. Arora, the learned counsel on
behalf of the respondent on the Interlocutory Application No. 4316
of 2009.
(2) The respondent, Lalla Singh has filed this
application seeking permission to sell one acre land out of the
lands in suit in order to meet the expenses of marriage of Puja,
grand-daughter of the respondent and also for the purpose of
investing money in the business which is run by the respondent’s
son. A counter affidavit has been filed on behalf of the appellant
objecting the prayer. A reply to the counter affidavit has been
filed by the respondent no. 1.
(3) The learned counsel, Mr. J.S. Arora submitted that
the respondent no. 1 is dire necessity of money for the purpose of
marriage of his grand-daughter and also for investing money in the
business of his son, therefore, he wanted to sell the property for
raising fund but there is injunction order, therefore, the application
has been filed seeking permission. The learned counsel further
submitted that appellants have no right, title or interest in the suit
property but are objecting to the permission. According to the
learned counsel, the suit property was gifted to the mother of the
respondent no. 1 in the year 1932 and when the appellant started
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disturbing possession of the respondent and even sold some of the
properties, therefore, the plaintiff-respondent filed the suit for
declaration of title on the basis of gift and the learned trial court
has decreed the suit.
(4) The learned counsel appearing on behalf of the
appellant submitted that the gift was not acted upon and the
learned Court below has wrongly decreed the plaintiff’s suit
although, the gift was a forged document. The learned counsel
further submitted that the respondent no. 1 has got only 2.30 acres
out of the suit property and he has already sold 1.95 acres of land.
Therefore, in his share, only 35 decimals lands remained. The
details of the property transferred have been mentioned in
Paragraph 4 of the counter affidavit.
(5) From perusal of the record, it appears that the
plaintiff-respondent filed title suit no. 132 of 1997 for declaring
the plaintiff as absolute owner of the Schedule-2 property and also
prayed for restraining the defendants-appellants from disturbing
the peaceful possession of the plaintiff. By the impugned
judgment and decree, the learned Sub Judge II, Danapur has
decreed the plaintiff’s suit. From perusal of the impugned
judgment, it appears that the learned Court below found that
Mishri Singh gifted the suit property in favour of his wife, Bechani
Kuer on 12.07.1932. She died leaving behind her only son, the
plaintiff, Lalla Singh.
(6) So far objection is concerned, according to the
appellant, the plaintiff-respondent has got only 2.30 acres out of
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the suit land i.e. 4 Anna share. The respondent has already sold
1.95 acres.
(7) During the course of the hearing, the learned
counsel for the respondent no. 1 submitted that to avoid any
controversy between the parties, the plaintiff-respondent will not
sell any such properties which have been already sold.
(8) From perusal of the counter affidavit, details of
properties have been mentioned in Paragraph 4. Nowhere the
date, month or year of the transfer of the said land has been
mentioned in the said Paragraph. Moreover, the learned Court
below has decreed the plaintiff-respondent’s suit finding the gift
deed to be genuine. In such circumstances, till the said finding is
set aside, the respondent no. 1 is the owner of the property.
Further it appears that during the pendency of the suit itself, the
appellants sold some part of the suit property.
(9) Considering the above facts and circumstances
and the requirement alleged in the application seeking permission
to sell, in my opinion, in the interest of justice, the plaintiff-
respondent no. 1 is permitted to sell 1 acre land out of the gifted
property which has not already been sold. Accordingly, the
Interlocutory Application No. 4316 of 2009 stands allowed.
( Mungeshwar Sahoo, J.)
Saurabh