Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 32 (MP)

Gulabrani v. Munnalal

2000-01-06

R.S.GARG

body2000
The plaintiffs filed a suit for declaration and permanent injunction inter alia pleading that certain joint properties belonging to Shankarlal and Munnalal were partitioned and in the share obtained by Shankarlal he had constructed as many as 9 rooms. According to them. in the year 1980 Munnalal made a request to the plaintiffs to give one room to him so that they could do the things properly. The defendant also assured the plaintiffs that he would adjust his tenant Laxman after constructing one room for him. According to them on 2.7.1993 a process server came to them and asked for possession of the said room and the other 2 rooms. According to the plaintiffs. the present non-applicant had fraudulently obtained an order for possession but as they are the owners of the property they cannot be dispossessed from the said 2 rooms which are in their possession. The defendant inter alia submitted that 3 rooms were exclusive property of the defendant and the same were constructed by him after the partition. He also pleaded that Laxman was his tenant and he has obtained a decree against Laxman. he is entitled to execute the decree and obtain the possession. The trial Court after hearing the parties found that the plaintiffs are entitled to injunction in relation to the said 2 rooms which are in their exclusive possession. Being aggrieved by the said order the non-applicant filed the appeal which was allowed by the appellate Court and the injunction granted by the trial Court was vacated. The applicants have filed this revision petition. The submission of the counsel for the applicants is that they are the owners of the property and are in exclusive possession of the same and the defendant has no right to dispossess them. According to him. even from the findings recorded by the first appellate Court it would clearly appear that the plaintiffs are in exclusive possession of the property. He also submits that in execution of the decree passed against Laxman the applicants cannot be dispossessed. On the other hand Shri Usmani counsel for the non-applicant submits that Laxman had left the property and the present applicants forcibly entered in the room, therefore and as they are rank trespassers, they are not entitled to any protective order from this Court. I have heard the parties at length and have perused the record. On the other hand Shri Usmani counsel for the non-applicant submits that Laxman had left the property and the present applicants forcibly entered in the room, therefore and as they are rank trespassers, they are not entitled to any protective order from this Court. I have heard the parties at length and have perused the record. The findings recorded by the appellate Court clearly shows that the plaintiffs are not claiming the right in the property through Laxman. According to the plaintiffs they were in possession of the property right from the inception in their own rights while according to the defendant the plaintiffs have encroached upon the property and have remained in the same. If the plaintiffs are in settled possession of the property then the true owner even if the defendant is assumed to be for the time being. cannot dispossess the plaintiff from the suit premises except in accordance with law. At this stage this Court is not required to decide about the title of the parties but is only required to see whether the present plaintiffs are in settled possession or not. If the plaintiffs are found to be in settled possession and the defendant has no right to dispossess him except in accordance with law, then the plaintiff cannot be left on the mercy of the defendant nor the defendant can be permitted to dispossess the plaintiffs at the point of power. The appellate Court did not take into consideration that if the plaintiffs are in possession of the properties and they are not claiming through Laxman then they cannot be dispossessed from the property. In such a case the defendant/decree holder of in the earlier suit. would be required to take steps in accordance with law for seeking dispossession of the plaintiffs either in the execution itself or by taking independent proceedings. Without making any comments on the rights and title of the parties I am of the opinion that the plaintiffs are entitled to the limited relief that the defendant cannot dispossess them except in accordance with law from the suit premises i.e. from the rooms which are found to be in their possession. So far as third room is concerned it is not claimed to be in possession of the plaintiffs. It is said that Laxman while leaving the room had put a lock on the said room. So far as third room is concerned it is not claimed to be in possession of the plaintiffs. It is said that Laxman while leaving the room had put a lock on the said room. If that is so the defendant would be entitled to execute his decree against Laxman and if the Court finds that Laxman had put a lock and the plaintiff is not in possession of the said room the Court certainly would be entitled to give possession of the third room to the plaintiffs in execution of their decree.