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.
