ORDER
Abhay M. Naik, J.
1. This petition has been preferred against the order of reversal by the First Appellate Court of order of temporary injunction granted by the Trial Court in favour of plaintiff/petitioner.
2. In short the plaintiff/petitioner instituted a suit for declaration of title and perpetual injunction on the ground that the husband of the plaintiff and his brothers were Pattedar of the land comprised in Survey No. 389/1 Kha and Survey No. 389/1 -E situated at Village Chandora, Tehsil Jaisingh Nagar, District Shahdol. Similarly, the plaintiff is stated to be recorded Bhumiswamini of land comprised in Survey No. 389/Gha area 0.995 hectares. Adjacent to it in southern direction there situates other piece of land belonging to plaintiffs husband and father of defendant No. 1. There situates another land comprised in Survey No. 389/Ka in area 1.295 hectares at Village Chandora, Tehsil Jaisingh Nagar District Shahdol which belonged to defendant No. 2 as Pattedar. Plaintiff purchased part of this land admeasuring 0.486 hectares vide registered sale deed dated 20th of June, 2003 and obtained its possession. Her name was duly mutated in the revenue record. The plaintiff mortgaged the said piece of land with other land with the Central Bank, Branch Amjhor and obtained a loan for shop.
3. Defendant No. 1 and his father were interested in purchasing the aforesaid disputed land and having failed in their attempt they developed enmity with the plaintiff, since she had purchased it. Defendant No. 3 is holding the post of Naib Tehsildar and is a close relative of defendant Nos. 1 and 2. Defendant No. 1 colluded with defendant No. 2 and tried to forcibly dispossess the plaintiff on 20-6-04. Plaintiff’s husband reported the matter to the police. Thereafter, the defendant No. 2 submitted an application in the Court of defendant No. 3 under Section 250 of the M.P.L.R. Code against the plaintiff’s husband and his brothers. On being served, plaintiff’s husband and his brother went to the office of the defendant No. 3 who threatened that the land available with the plaintiff’s husband under different pattas would be taken back after cancellation of patta unless the plaintiff executes a sale deed in respect of disputed land. The plaintiff’s husband was thus threatened. He came to the house and took back plaintiff with him. The sale deed was already prepared and the signature of the plaintiff was obtained on it under the threat without any consideration. The plaintiff/petitioner has made a prayer for declaration that the registered sale deed dated 11-8-04 may be declared as fraudulent deed without consideration and that no rights accrued on this basis in favour of the defendant No. 1.
4. The plaintiff/petitioner simultaneously submitted an application for temporary injunction for restraining the defendant/respondents from interfering with the possession over the disputed land. The application is supported by various affidavits and documents.
5. The defendant/respondents opposed the application for temporary injunction on the ground that the sale deed has been duly executed by the plaintiff after receiving the consideration of Rs. 40,000/-.
6. Learned Trial Judge vide his order dated 6-4-05 allowed the application for temporary injunction in favour of the plaintiff and restrained the defendant Nos. 1 to 3 from interfering into her possession over the suit land.
7. Aggrieved by the aforesaid, Misc. Civil Appeal was preferred which has been allowed vide order dated 6-10-05 contained in Annexure P-2 by Additional District Judge, Beohari, District Sahdol.
8. This petition has been preferred by the plaintiff/petitioner on the ground that the learned Trial Judge had rightly appreciated the material on record and had given a categorical finding that the plaintiff is in actual possession of the suit land. This finding has been reversed by the Lower Appellate Court merely on the basis of registered sale deed which itself is in dispute. Moreover, the Lower Appellate Court has failed to take into consideration the various documents, affidavits and revenue records which have given rise to perversity.
9. Shri Dadariya and Shri Avinash Patel, learned Counsel for the parties made their respective submissions in support of their respective pleas.
10. Shri Avinash Patel, Advocate for the respondents submitted that the order of the Lower Appellate Court is justified and no interference is warranted.
11. Considered the arguments and perused the record.
12. The defendant/respondent No. 1 is claiming the suit property on the strength of registered sale deed alleged to have been executed by the plaintiff/petitioner on 11-8-04. In this view of the matter, undisputedly the disputed land belonged to the plaintiff/petitioner prior to the alleged registered sale deed. The disputed land was purchased by the plaintiff/petitioner vide registered sale deed dated 20-6-03 and the defendant/respondent No. 1 has been unable to plead any facts and circumstances which forced the plaintiff/petitioner to sell the disputed land within a period of one year from the date of purchase. On the contrary, the plaintiff has specifically and expressly pleaded in the plaint that the father of the defendant/respondent No. 1 wanted to purchased the disputed suit land and developed enmity with the plaintiff on account of purchase by her of the same from the defendant No. 2 vide registered sale deed dated 20-6-03. It has been further pleaded that the defendant Nos. 1 to 3 are close relatives and are influential persons of the area on account of being Thakur by caste. Defendant No. 3 is Naib Tehsildar of the same area. It has been expressly pleaded that the application submitted by the defendant No. 2 under Section 250 of M.P.L.R. Code was got filed before the defendant No. 3 after he executed the registered sale deed in favour of the plaintiff/petitioner. In these proceedings notice was issued to the plaintiff’s husband who is holding other pieces of land described in the plaint and Patta. He was threatened by Naib Tehsildar that Patta in his favour would be cancelled, if the disputed land is not transferred in favour of defendant No. 1. Prior to it, an attempt for forcible dispossession of the plaintiff was also made and police report was duly lodged by the plaintiff on 20-6-04. Having failed in their attempt to dispossess the plaintiff forcibly, it is stated that defendant Nos. 1 to 3 colluded and compelled the plaintiff’s husband to bring the plaintiff from her village and got the registered sale deed executed on 11-8-04 under coercion and without payment of consideration.
13. Learned Lower Appellate Court has not even cared to consider the aforesaid serious and grave allegations made by the plaintiff who belonged to backward class. The fact that the defendant No. 3 is holding post of Naib Tehsildar has not been disputed. Similarly, copy of the police report is on record and report of the Patwari (Annexure P-9) was requisitioned by the Police Station during investigation. In the report dated 22-6-04 submitted by the Patwari, it has been mentioned that the plaintiff/petitioner has been in cultivating possession of the disputed land on her account of having purchased it vide registered sale deed dated 20-6-03. Similarly, the name of the plaintiff has been duly entered in the record of rights as revealed in Khasra marked as Annexure P-8. The original Rin Pustika is also in possession of the plaintiff/petitioner. Had there been voluntarily sale by her in favour of defendant/respondent No. 1, on the Bhu Adhikar and Rin Pustika would have been handed over to the purchaser. The defendant/respondent No. 1 on the strength of the disputed registered sale deed got his name mutated vide order of Naib Tehsildar dated 6-10-05. This was challenged before the SDO, Jaisingh Nagar in Revenue Case No. 65/Appeal/A-6/2004-05 which was allowed on 12th of August, 2005 and it was found that the order of mutation was not sustainable in law. Accordingly, the appeal was allowed and the order of mutation in favour of the defendant/respondent No. 1 has been set aside vide Annexure P-7. It has been found in Annexure P-7 that delivery of possession by plaintiff and payment of consideration could not be established by the defendant No. 1.
14. Apart from the aforesaid, affidavits of Balvant, Sanjay Yadav, Bhole Sahu, Gendalal Sahu, Samar Sahu and Ramchandra are on record cumulatively as Annexure A-3. All the deponents have supported the averments contained in the plaint as well as application for temporary injunction. Learned Trial Court after taking all the material on record into consideration found that possession of the plaintiff over the suit land is prima facie established and in view of the nature of controversy revealed in the pleadings and the material on record, strong prima facie case in her favour was also found to be established on the date of institution of suit. Ingredients of irreparable injury and balance of convenience were also found in plaintiff’s favour and consequently the temporary injunction was granted restraining respondent Nos. 1 to 3 from interfering into plaintiff’s possession over the suit land.
Learned Trial Judge has clearly observed in Paragraph 9 of his order (Annexure P-1) that the possession of the plaintiff has been established by affidavits of various persons named therein whereas the defendant did not submit a single affidavit of an independent person for establishing his possession on the suit land. Thus, finding of the learned Trial Judge with respect to the possession of plaintiff could not have been reversed by Lower Appellate Court merely on the basis of presumption drawn on the basis of the disputed registered sale deed.
15. It was bounden duty of the learned Lower Appellate Court to meet out the reasonings assigned by the learned Trial Judge while granting the application for temporary injunction in favour of the plaintiff. Instead the learned Lower Appellate Court has placed reliance on recital about delivery of possession contained in disputed sale deed. This Court long back in 1983 MPWN 389 Gulsher Khan v. Hoshiyar Khan has held that recital about delivery of possession is bound to be found in a registered sale deed in view of its very nature. In this view of the matter such a recital does not always inspire confidence, moreso, when such document itself is in dispute and the plaintiff has pleaded in detail about facts and circumstances under which the alleged deed has been got executed by duress and without consideration. It is true that the recital about delivery of possession may give rise to a presumption in favour of the purchaser but it cannot always be drawn ignoring the attending facts and circumstances. In the present case, as revealed in the police report, the defendant No. 1 appears to have tried to dispossess the plaintiff forcibly. Few months before the execution of the alleged sale deed in his favour an investigation was made by the police and the plaintiff/petitioner was found to be in possession. Thereafter, the defendant No. 1 took help of his relative (respondent No. 3) who happened to be Naib Tehsildar of the same area. It has not been disputed by the contesting defendant/respondent that the plaintiff’s husband owned other land in the same area on Patta. The plaintiff is a rustic villager lady and has narrated all the attending facts and circumstances which have been totally ignored by the learned Lower Appellate Court while passing the impugned order.
Reliance placed by Shri Avinash Patel, learned Advocate for respondents on the decision of Supreme Court in the case of Ramti Devi v. Union of India , is of no assistance because in that case the suit containing challenge to the registered sale deed was instituted after more than 3 years whereas in the present case the alleged sale deed is stated to have been executed on 11-2-04 and the suit has been instituted on 10-9-04, i.e., within 7,8 months from the date of alleged sale deed. This apart, other documents are also on record which establish that the sale deed dated 11-2-04 was never accepted by the plaintiff/petitioner.
16. Learned Lower Appellate Court has merely relied upon the alleged sale deed on the ground that the same cannot be disbelieved unless declared by the Competent Court as null and void. Plaintiff has come up with a case that the registered sale deed was got executed from her by duress and without consideration. Civil Court of competent jurisdiction as well as the learned Lower Appellate Court are obliged to look into the matter in judicious manner by considering the probability of truth in the plaintiff’s case on the basis of averments and material on record. This having not been done, the impugned order is not sustainable in law and the same is hereby set aside restoring that of learned Trial Judge. No order as to costs.