PRASHANT KUMAR DABRAL Vs. DIGVIJAY SINGH
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Prashant Kumar Dabral
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(1.) This appeal has been filed by the plaintiff/ appellants against the order dated 03.03.2012 passed by Addl. District Judge/7th F.T.C., Dehradun in Original Suit No. 223 of 2011 whereby the Court below has dismissed the temporary injunction application paper no. 6c-2 moved by the plaintiff/appellants and the temporary injunction application paper no.25c-2 moved by the defendant/respondents. Simultaneously, the order dated 27.07.2011 was set-aside whereby the parties were directed to maintain status-quo.
(2.) As per the plaint version, it revealed out that father of the appellants, namely, Sri Krishan was the owner of land total measuring .3840 hectares situate at Mauja Mothrowala, Pargana Parwadoon, Tehsil Sadar, District Dehradun. His name was duly recorded in the revenue records. The plaintiff/ appellants are the sons of Sri Krishan. The name of the father of the appellants continued to be recorded in the revenue records but after his death, the appellants could not get the same muted in their names. It is asserted that somehow, while forwarding the entries in the Khatauni of the subsequent years, the name of the father of the appellants, namely Sri Krishan S/o Sri Gopi Ram, got changed to Sri Srishan S/o Gopal. It is asserted that this change in the revenue record was purely a clerical mistake at the hands of revenue authorities. It is further asserted that some person impersonating himself to be the said Sri Krishan (father of the appellants) had sold the land to defendant no.1. Said sale deed was executed on 6th October, 2009, which is registered in the office of Sub-Registrar, Dehradun. Furthermore, the said imposter had not made his signature over the sale deed, but had placed his thumb impression over the same, whereas father of appellants was an educated man and knew how to read and write, as he was working as a Clerk at Guru Ram Rai Darbar Sahib, Jhanda Mohalla, Dehradun, who had died on 22nd September, 1987 i.e. much before the execution of the said sale deed dated 6th October, 2009. It is alleged that the respondent no.1 further sold the property to defendant no.2 vide sale deed dated 24th May, 2010. It is alleged that the defendants had full knowledge of the forgery and they may be part and parcel of the forgery. The possession of the property is still with the plaintiff/appellants. It is further alleged that the defendant/respondents were trying to take forceful possession over the said property, therefore, the plaintiff/appellants filed O.S. No. 223 of 2011 before the Court below for cancellation of sale deeds dated 6th October, 2009 and 24th May, 2010 and for restraining the defendants from interfering in the peaceful possession of the plaintiff/appellants over the property in dispute. Alongwith the suit, an application under Order XXXIX Rule 1 C.P.C. for interim injunction was also moved and the defendant/respondent no.2 filed objection against the temporary injunction application and also filed his written statement with the counter claim praying for grant of a decree of declaration that the death certificate of Sri Krishan Dabral be declared as sham and bogus document and not binding upon him. The respondent no.2 also filed application no. 25c-2 for grant of temporary injunction in his favour. The respondent no.2 also disclosed that earlier a Suit No. 519 of 2010 was instituted by him. It is alleged that during pendency of O.S. No. 223 of 2011 and during continuation of interim order dated 27.07.2011 to maintain status-quo, the defendant/ respondents tried to interfere into the possession of the appellants. The learned Court below vide order dated 03.03.2012 dismissed the temporary injunction application moved by the plaintiff/appellants as well as by respondent no.2.
(3.) The respondent no.1 came up with the case that he purchased the said land from Srikrishan S/o Gopal, resident of Jhanda Mohall, Dehradun vide registered sale deed dated 06.10.2009 after due diligence i.e. thorough inspection of revenue record of suit property as well as on gathering enquiry from the local villagers of Mothrowala. The record of more than 30 years was checked and it was found that the property was is in the name of Srikrishan S/o Gopal, and the same person also delivered the possession of the land in question to respondent no.1. It is asserted by respondent no.1 that as per Section 34 of Land Revenue Act, 1901, mutation proceeding of the aforesaid property was carried out by the Tehsildar, Sadar, Dehradun and since no one has objected sale of the said property, even after publication, the Tehsildar ordered mutation of the property in the name of respondent no.1. Thereafter, on 24.04.2010 the respondent no.1 sold the said property to respondent no.2 almost after eight months, and also handed over its possession to him.;
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