# Santu and others v. Jagannath and others - **Citation:** (2003) 3 ILRA 759 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2003-05-08 - **Case number:** Second Appeal No. 2694 of 1982 - **Bench:** B.K. Rathi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santu-and-others-v-jagannath-and-others-40193 - **Pages:** 3 ## Headnote Code of Civil Procedure 1908- Section 100- Second Appeal- possessory title- whether appellant entitled to the decree of permanent injunction on the basis of possessory title alone even without proving the sale deed? Held ' Yes'. Held- Para 6 The appellant is therefore, entitled to the decree of permanent injunction on the basis of possessory title alone. That this aspect of the matter has been totally ignored by the first appellate court. I agree with the argument of the learned counsel for the appellant that the appellant is entitled to the decree for the permanent injunction on the basis of the possessory title against the respondents who have no title over the land nor are in possession of the same. ## Text http:\\allahabadhighcourt.nic.in 3 All] Santu and others V. Jagannath and others 759 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 8.5.2003 BEFORE THE HON'BLE B.K. RATHI, J. Second Appeal No. 2694 of 1982 Santu and others ...Appellant Versus Jagannath and others ...Respondent Counsel for the Appellant: Sri P. Prakash Sri J.A. Azami Sri Lalji Yadav Sri J.J. Muneer Counsel for the Respondents: Sri Shirish Pd. Code of Civil Procedure 1908- Section 100- Second Appeal- possessory title- whether appellant entitled to the decree of permanent injunction on the basis of possessory title alone even without proving the sale deed? Held ' Yes'. Held- Para 6 The appellant is therefore, entitled to the decree of permanent injunction on the basis of possessory title alone. That this aspect of the matter has been totally ignored by the first appellate court. I agree with the argument of the learned counsel for the appellant that the appellant is entitled to the decree for the permanent injunction on the basis of the possessory title against the respondents who have no title over the land nor are in possession of the same. (Delivered by Hon'ble B.K. Rathi, J.) 1. The appellant Santoo (since deceased) filed the suit for permanent injunction to restrain the respondents from interfering in his possession over the land in dispute as shown in the said plan given at the foot of the plaint. The relief for mandatory injunction has also been sought directing the respondents to remove cattle troughs etc. The respondents contested the suit and they claimed the ownership and possession of the disputed land. The trial court held that the plaintiff failed to prove his possession over the disputed land. He has also failed to prove his title over the same. That the cattle troughs put by the respondents could not be removed. The trail court accordingly dismissed the suit with costs. Aggrieved by it the appellant preferred first appeal no. 30 of 1981. The respondents also preferred appeal no. 605 of 1981. Both the appeals were heard and dismissed on 18.8.1982. Therefore, the present second appeal has been filed. 2. I have heard Shri J.J. Muneer, learned counsel for the appellant. None appeared for the respondents at the time of the hearing of the appeal. However, I have gone through the entire record. 3. According to the appellant, the disputed property originally belonged to Nibar who transferred it by the sale deed to Sahabdin. The appellant purchased the property from Sahabdin by sale deed dated 30.1.1973 and he got the possession of the same. The first appellate court after considering the evidence in detail has held that Nibar was the owner and in possession of the property in dispute. He further held that Nibar transferred the property to Sahabdin and he became owner of the property in dispute by sale deed. However, the appeal was dismissed by the appellate court for the reason that the sale deed alleged to have been executed by Sahabdin on 30.1.1973 in favour of the plaintiff- appellant has not http:\\allahabadhighcourt.nic.in 760 INDIAN LAW REPORTS ALLAHABAD SERIES [2003 been proved. Sahabdin was examined by the plaintiff to prove both the sale deeds executed by Nibar in his favour and sale deed executed by him in favour of the appellant. The appellate court has held that the sale deeds have not been proved in accordance with law as Sahabdin was totally illiterate. He has only identified the thumb marks of the sale deed, which is not possible, as he is not a finger print expert. That the sale deed should have been read over to him. That therefore, the execution of the sale deeds has not been proved in accordance with law. 4. The second appeal was admitted on this question alone by the following order : "The substantial question of law involved in the second appeal is that the lower appellate court seems to have acted illegally in taking the view that the sale deed executed by Sahabdin who has been found to be the owner of the property in dispute in favour of the appellant had not been proved notwithstanding the statement of Sahabdin himself proving the said sale deed." 5. After considering the argument of the learned counsel, I am of the view that there is no illegality in the finding of the first appellate court that Sahabdin has not proved the sale deed in accordance with law. He has only stated that the sale deed bear his thumb mark, which statement cannot be believed. If a document is to be proved by illiterate person, it should be read over to him. Therefore, I find that there is no illegality in the order of the first appellate court that the sale deed has not been proved in accordance with law. 6. However, it has been argued by Sri J.J. Muneer, learned counsel for the appellant that even if the sale deed has not been proved the suit should have been decreed by the appellate court on the basis of the finding of possession in favour of the appellant. It has been argued that the lower appellate court has held that Nibar was owner and he was in possession over the property in dispute. Thereafter, Sahabdin was the owner in possession. Sahabdin has entered into the witness box and stated that he has transferred the ownership and possession to the appellant. Therefore, it has been argued that the appellant is in legal possession over the property in dispute. As against this the respondents have failed to prove their title over the disputed land. They have also failed to prove their possession. The appellant is therefore, entitled to the decree of permanent injunction on the basis of possessory title alone. That this aspect of the matter has been totally ignored by the first appellate court. I agree with the argument of the learned counsel for the appellant that the appellant is entitled to the decree for the permanent injunction on the basis of the possessory title against the respondents who have no title over the land nor are in possession of the same. 7. Accordingly, the appeal is allowed and the respondents are restrained by way of permanent injunction from interfering in the possession of the appellant over the land in dispute and to take possession of the same without due process of law. 8. In the circumstances, the parties shall bear their own costs throughout. --------- http:\\allahabadhighcourt.nic.in 3 All] Ram Anuj Dubey V. State of U.P. 761 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 02.05.2003 BEFORE THE HON'BLE K.N. SINHA, J. Criminal Misc. Application No. 3056 of 2003 Ram Anuj Dubey ...Applicant Versus State of U.P ...Opposite Party Counsel for the Applicant: Sri N.D. Shukla Counsel for the Opposite Party: A.G.A. Criminal Procedure Code 1808-Sec.-156 (3) application under section 156 (3)- Direction to register as complaint caseorder without jurisdiction-direction to register case under Section 156 (3) Cr.P.C. is quite different to the complaint case under Section 200 Cr.P.C. Held-Para 9 Thus the pronouncement of this Court in the case of Dinesh chandra and others (Supra) clarified the position of complaint under Section 200 Cr.P.C and application under Section 156(3) Cr.P.C. I, therefore, find that the learned C.J.M. Bhadohi exceeded the jurisdiction in registering the application under Section 156 (3) Cr.P.C as a complaint. The application is, therefore, allowed. The impugned order dated 19.4.2003 so far as it relates to registration of application under Section 156 (3) Cr.P.C as a complaint case is quashed. The C.J.M. Bhadohi is directed to proceed and pass appropriate order on the application under Section 156 (3) Cr.P.C at an early date. Case law:- 2001 (1) J.I.C. page 4701 2001 (1) J.I.C. page 942 Alld. AIR 1997 S.C. page 3104 (Delivered by Hon'ble K.N.Sinha, J.) 1. The present application has been filed against the order dated 19.4.2003 passed by Chief Judicial Magistrate, Bhadohi whereby he directed to register the application under Section 156 (3) Cr.P.C as complaint. 2. The brief fact giving rise to this application are that an application under Section 156 (3) Cr.P.C was moved by applicant for registration of the case and investigation. The C.J.M Bhadohi ordered for registering of the case as a complaint case. 3. The learned counsel for the applicant has submitted that the procedure of complaint case and application under Section 156 (3) Cr.P.C are quite different and the C.J.M. Bhadohi has without caring for this passed the impugned order. In support of the contention he has relied upon two case law. 4. Being aggrieved by the said order the present application has been filed. 5. I have heard learned counsel for the applicant and learned A.G.A and also perused the impugned order. 6. In the case of Mahboob Ali Vs. State of U.P. and others, reported in 2001(1) JIC page 470, Alld. It has been held that the scope of application under Section 156 (3) Cr.P.C and that of complaint are different. The facts of the case referred in the case of Mahboob Ali (Supra) are similar to those of the present case. In that too the applicant had moved an application under Section 156 (3) Cr.P.C which was ordered to be registered as a complaint.