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2001 DIGILAW 799 (MP)

Bhageshawari Bai v. Munna

2001-11-06

P.C.AGARWAL

body2001
Judgment ( 1. ) BHAGESHAWARI Bai and Anr. v. Munna, the Second Addl. District Judge, Betul in Civil Case No. 8-A/2001, Munna Vs. Bhageshawari and two Ors. , on 12-7-2001 allowed an application filed by Munna (R-l) and granted a temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure (to be called as Code only) and restrained (he appellants from interfering in possession of Munna (R-l) over the suit land bearing khasra No. 137/2, area 1. 619 hectare situate in village Ankabadi (to be called as suit land only ). ( 2. ) AGGRIEVED thereby, this misc. appeal was filed on 25-7-2001. ( 3. ) MUNNA (R-l) was in cultivatory possession of the suit land from 24-6-94 to 24-6-2000 under a contract. Sugarcane is being grown on the suit land. Bhageshawari Bai (A-1) has executed a sale deed on 1-12-2000 in favour of Ajay Kumar (A-2 ). The suit land has been mutated in the name of Ajay Kumar (A-2) and Kishan Pawti and Rin Pustika have been issued in his name. Munna (R-l) has filed a civil suit for specific performance of a contract to sell the suit land on 26-9-2000 and for injunction. According to him he was in possession of the suit land since 1994. On 26-9-2000 a contract for purchase of suit land was entered into of Rs. 2 lacs as consideration. Rs. 1 lac was paid in cash and a Bayana chitti was executed. The period for Theka was enhanced upto 1,24-6-2002. Smt. Bhageshawari Bai (A-J) had surreptitiously executed a sale deed in favour of Ajay Kumar (A-2 ). Munna (R-l) claimed to be in possession of the suit land and has applied for temporary injunction to maintain his possession till the decision of the civil suit. The learned Trial Judge after hearing both the parties, persual of documenls and affidavits allowed the application. ( 4. ) AS per appellants the Bayana Chitti is a forged document. The period of Theka was never extended. Munna (R-l) was not in possession of the suit land. Sugar-cane crop was sown by the Ajay Kumar (A-2) and thus grant of temporary injunction has beer! improper. ( 5. ) THE learned Trial Court has rightly considered all the three pillars for grant of temporary injunction. Obviously Munna (R-1) was in cultivatory possession of the suit land since [994. Munna (R-l) was not in possession of the suit land. Sugar-cane crop was sown by the Ajay Kumar (A-2) and thus grant of temporary injunction has beer! improper. ( 5. ) THE learned Trial Court has rightly considered all the three pillars for grant of temporary injunction. Obviously Munna (R-1) was in cultivatory possession of the suit land since [994. He claimed that he parted with possession of the suit land has not been established by the appellants. It is not established that Ajay Kumar (A-2) could sow sugarcane crop which is a biennial crop. The finding of the learned Trial Court that Munna (R-1) is in possession of the suit land is based on sound principles and evidence on record. The affidavits of Manohar Mohra, Dhanraj, K. K. Verma, Daulat and Bhaurao clearly support such a claim. On the other hand though Bhageshawari Bai (A-1), Ajay Kumar (A-2) and Shiv Narain alias Chota have tried to support the appellants but learned Trial Judge has not committed any error in disbelieving them as they have not disclosed when the possession was handed over to Bhageshawari Bai (A-l) by Munna (R-l ). No affidavit of any labour is filed before the Trial Court to show that the sugarcane crop was planted by Ajay Kumar (A-2 ). ( 6. ) IT is true that Munna (R-l) has given three dates for execution of extension of Theka i. e. , 11-5-2000 in appeal memo, 24-6-2000 in notice and 26-6-2000 in plaint and has not filed such documents before the Trial Court. However, that in its may merely show that no extension deed was written. However, there is a mention of extension of such period in Bayana Chitti. Letterdated 14-2-2001 and 26-2-2001 by Bhageshawari (A-l) and letters dated 14-2-2001 and 26-2-2001 by Ajay Verma (A-2) and a publication of notice in daily news paper dated 20-3-2001 and complaint dated 22-5-2001 are not determinative and do not show prima facie that Ajay Kumar (A-2) is in possession of the suit land. Thus, Munna (R-l) was able to establish a prima facie case in his favour. Contract to sell dated 26-9-2000 was earlier to sale deed dated 1-12-2000 in favour of Ajay Kumar (A-2 ). ( 7. ) OBVIOUSLY balance of convenience was also in favour of Munna (R-l ). Thus, Munna (R-l) was able to establish a prima facie case in his favour. Contract to sell dated 26-9-2000 was earlier to sale deed dated 1-12-2000 in favour of Ajay Kumar (A-2 ). ( 7. ) OBVIOUSLY balance of convenience was also in favour of Munna (R-l ). No irreparable loss was to be suffered by Ajay Kumar (A-2) who was not in possession of the suit land, in case no injunction was granted in his favour. The impugned order of the Trial Court was based on sound and legal principles, hence no interference is called for. ( 8. ) THE appeal is dismissed. Costs as incurred.