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Question of law as to is the trial court beyond its jurisdiction to inspect the possession of property

Nida Khatri ,
  21 September 2020       Share Bookmark

Court :

Brief :
The issue of possession is decided only on the basis of evidence.
Citation :
Petitioner: Ashok Parwat Respondent: Sudarshan Citation:2016 Vol 4 MPLJ 20

Bench:

S.R. Waghmare

Issue:

Whether the property in question belongs to the alleged adopted son of the respondent?

Facts:

  • Petition was finally heard at the court due to the request of both the parties.
  • Application is under Order 39, rule 7 of the CPC.
  • The plaintiff, who is respondent 1, has filed a complaint against the respondent no 2 and the state claiming his half share in the property in dispute.
  • As the respondent lady stated that she had sold the land in the name of the petitioner, he was impleaded as the defendant no 4 in the case.

Appellant's contentions:

  • The plaintiff claims he was adopted by the husband of the respondent and is asking for his share in the property.
  • The plaintiff prayed for the inspection of the property to find out who is in possession.
  • Trial court has wrongly considered report about the possession of the property and is beyond its jurisdiction under Order 39, rule 7 of CPC.

Respondent's contentions:

  • Respondent has denied that her husband had adopted the plaintiff, and stated that she is the sole heir of her husband’s property.
  • She stated that she has already sold the land to the present petitioner of the case.
  • The defendant no 4 stated that he has brought the property from the lady and is in possession of the property.
  • He pleaded that his name was mutated in the records.
  • Trial court has not committed any illegality because when there is a dispute in matter of possession, then appointing a commission to get a report is the only way.
  • In Haryana WAQF Board Vs Shanti Sarup, it was held that when there is controversy in possession, a legal commission is appointed & in Durga Prasad Vs Parveen Foujdar, it was stated the same in the case of encroachment.

Final judgement:

  • The issue of possession is decided only on the basis of evidence.
  • The purpose of Order 39, rule 7 is not to collect the evidence which can be collected in normal proceedings of the court.
  • The Tehsildar in his report stated that the petitioner had erected the pillars in the property and the plaintiff did not object to it.
  • Burden lies on plaintiff to establish by way of evidence.
  • On the basis of this evidence found, possession of the petitioner is found and he has a registered sale deed. Hence, his petition is allowed.
 

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Published in Constitutional Law
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