Arun Kumar Singh Deshwal, J.
1. Vakalatnama filed today by Sri Samarth Saxena, Advocate, on behalf of respondent no.1, is taken on record.
2. Heard learned counsel for the appellants and Sri Samarth Saxena, learned counsel for respondent no.1.
3. Present appeal has been filed for the following relief:
"Wherefore it is most respectfully prayed that this Hon'ble Court may be pleased to allow the Second Appeal and set aside the judgement and decree dated-02.11.2023 passed by District Judge, Lakhimpur, Kheri in First Appeal No-54/2023. Computerised No-55 of 2023, Pratap Bahadur Srivastava & Others Versus Saumya Mehta & Others as well as judgement & decree dated-21.03.2023 passed by Civil Judge (Senior Division), Lakhimpur Kheri in Regular Suit No-127/2016, Computerised No822/2016, Pratap Bahadur Srivastava & Others Versus Saumya Mehta & Others and suit be decree as prayed in plaint with cost."
4. Contention of learned counsel for the appellants is that the appellants had filed suit for permanent injunction on the ground that the owner of the plot nos.15 and 16, Naresh Chandra had executed two sale receipts in favour of the appellants on 18.02.1995 and 16.07.1996 and possession was also handed over to them. Even during pendency of suit, complaint was amended claiming the right on the basis of adverse possession but their suit was dismissed on the ground that the sale receipt has no evidentiary value and cannot be termed as agreement to sale which is required u/s 53A of the Transfer of Property Act, 1882 and also hold that the sale deed executed by Kalawati in the year 2000 in favour of respondent no.1 being the owner on the basis of sale deed dated 04.06.1997 executed by the wife of Naresh Chandra after his death. It is also submitted that property in dispute as well as property purchased by respondent no.1 are situated in different locality. Appellate court also dismissed the appeal of the appellants without considering the fact that appellants have been in possession of the plot nos.15 and 16 on the basis of two sale receipts issued by the owner Naresh Chandra and also failed to consider the plea of adverse possession.
5. However, learned counsel for the respondents had submitted that the appellants failed to prove better title as the respondent no.1 purchased the plot through sale deed while the appellants are claiming only on the basis of sale receipt which have no evidentiary value being unregistered document. It is further submitted by learned counsel for the appellants that plea of title as well as adverse possession cannot be taken simultaneously. In support of his submission, learned counsel for the appellant has relied upon the judgement of the Apex Court in the case of Narasamma and Others Vs. A. Krishnappa (dead) Through Legal Representatives reported in (2020) 15 SCC 218 [LQ/SC/2020/622] in which Apex Court observed that plea on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.
6. After considering the submission of parties and on perusal of record, it is undisputed that the appellants filed a suit for permanent injunction initially claiming the title on the basis of two sale receipts allegedly executed by the owner of plots Naresh Chandra with possession, however, subsequently the plaint was amended and plea of adverse possession was also taken, though, both the pleas are not simultaneously permissible under the law. Secondly, the boundaries of the plot in question in the commission report is similar to the sale deed of respondent no.1. Therefore, contention of learned counsel for the appellants that the property in dispute is situated in different Mohalla is misconceived. This court is of the view that for claiming injunction against another person, the plaintiff must have prima facie proved better title to the defendant but in the present case admittedly the defendant/respondents are having better title than that of the plaintiff, therefore, no substantial question of law is made out. Therefore, the present appeal is dismissed.
