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2007 DIGILAW 300 (MP)

Harish chandra v. P. K. Dwivedi

2007-03-14

A.K.SHRIVASTAVA

body2007
ORDER A.K. Shrivastava, J. 1. Feeling aggrieved by the impugned order dated 13-8-2002 passed by 10th Additional District Judge, Bhopal in Civil Suit No. 84-A/2002, whereby the application for issuance of temporary injunction filed by the plaintiff has been rejected, this appeal has been preferred by plaintiff under Order XLIII, Rule l(r) of the Code of Civil Procedure, 1908. 2. A suit for declaration and permanent injunction in respect to Plot No. 3, situated in Khasra No. 255 of village Narela Shankri, P.H. No. 19, Tahsil Huzur, District Bhopal has been filed by the plaintiff praying therein a declaration that he is owner of the suit land. Further a decree for permanent prohibitory injunction is sought against the defendants and in favour of plaintiff thereby restraining the defendants from interfering with the physical possession as well as in construction activities of the plaintiff over the suit plot either himself or through his associate, agent, employees etc. 3. During the pendency of the suit, an application for issuance of temporary injunction under Order XXXIX, Rules 1 and 2, Code of Civil Procedure has also been filed by the plaintiff praying therein that till disposal of the suit defendants be restrained from interfering with the possession of plaintiff and from dismantling the fencing work carried out by the plaintiff over the suit plot. 4. On bare perusal of the plaint as well as averments made in the application for issuance-'-of temporary injunction it is gathered that plaintiff bought the suit plot vide'Vegistered sale-deed dated 30th August, 1974 from Pribhdas son of Adumal-for a consideration of Rs. 300/- and the physical possession was also delivered to the vendee/plaintiff. However, defendants are trying to dispossess the plaintiff from the suit plot and hence relief of temporary injunction has been sought. 5. Plaintiff in support of his application filed his own affidavit and that of L.D. Dalwe and Shawar Siddiqui in order to substantiate his contention that he is in possession of the suit property. A certified copy of the registered sale-deed dated 30-8-1974 executed in favour of plaintiff has also been filed to show that on the disputed plot plaintiff is having physical possession as well as he is owner of the said plot. 6. The application for temporary injunction filed by the plaintiff has been opposed by the respondents/defendants by filing a reply. A certified copy of the registered sale-deed dated 30-8-1974 executed in favour of plaintiff has also been filed to show that on the disputed plot plaintiff is having physical possession as well as he is owner of the said plot. 6. The application for temporary injunction filed by the plaintiff has been opposed by the respondents/defendants by filing a reply. The main contention in the reply is that which specific portion the plaintiff is possessing there is nothing on record and since necessary description in regard to the identity of suit property as envisaged under Order v. II, Rule 3, Code of Civil Procedure has not been givenby the plaintiff and since the suit property cannot be ascertained, prayer to grant temporary injunction cannot be allowed. 7. Learned trial Judge by the impugned order has rejected the application mainly on the ground that the plaintiff has failed to specify the suit plot. According to the learned trial Court Khasra No. 255 is a big piece of land and in this khasra where the plaintiffs suit plot is situated, there is no sufficient material on record in that regard and, therefore, plaintiff is not having prima facie case and since he is not having prima facie case, it cannot be said that he is in possession of the suit property and balance of convenience is also in his favour. In this manner, trial Court has rejected the application. 8. It has been contended by learned counsel for the appellant that the impugned order passed by trial Court is not in accordance with law as there is sufficient description I n regard to the identity of the suit property. In this regard learned counsel for the appellant has invited my attention to the pleadings made in para 1 of the plaint. It has also been put-forth by him that factum of delivery of possession has been mentioned in the registered sale-deed executed in favour of plaintiff and hence prima facie there is overwhelming material in regard to hold that plaintiff is the owner of the suit property and is possessing the same and, therefore, balance of convenience is also in his favour apart from prima facie case and he shall suffer irreparable loss if the application is not allowed. 9. On the other hand learned senior counsel for the respondents has argued in support of the impugned order. 10. 9. On the other hand learned senior counsel for the respondents has argued in support of the impugned order. 10. After having heard learned counsel for the parties and perusing the record of the trial Court, I am of the view that this appeal of plaintiff deserves to be allowed and the application for issuance of temporary injunction filed by plaintiff/appellant deserves to be allowed. 11. On bare perusal of para 1 of the plaint it is revealed that there is specific pleadings of the plaintiff in para 1 of the plaint showing the identity of the suit property which reads thus: 1. That the plaintiff is owner and in possession of Plot No. 3 being part of Khasra No. 255 situated in village Narela Shankri, P. H. No. 19 Tehsil Huzur, Distt. Bhopal. The said plot had been purchased by the plaintiff vide duly registered sale deed dated 30-8-1974 registered in the office of Sub-Registrar, Bhopal in its Book A-l, Vol; 1552 at Sri. No. 3101. The said plot total admeasures 1550 Sq. ft. and is situated within the following boundaries: EAST Plot No. 4 WEST Plot No. 2 NORTH By Road. SOUTH By Gali. Thus it has been specifically mentioned in para 1 of the plaint that plaintiff is the owner and in possession of Plot No. 3 being part of Khasra No. 255 situated in village Narela Shankri, P. H. No. 19, Tehsil Huzur, Distt. Bhopal. It has also been pleaded that the said plot had been purchased by the plaintiff vide registered sale-deed dated 30-8-1974. In very specific terms plaintiff has given measurement of the plot i.e. 1550 Sq. ft. and its four boundaries which I have already mentioned hereinabove. 12. On bare perusal of the lay out which has been filed by the defendants in the trial Court it is gathered that Plot No. 3 can very well be ascertained and if the lay out is kept in juxtaposition to four boundaries mentioned in para 1 of the plaint, one can ascertain where the Plot No. 3 is situated. On bare perusal of the lay out it is gathered that Plot No. 1 has been shown and if the plotting is counted, Plot No. 3 (plaintiffs plot) can very well be ascertained which is situated after Plot No. 2. On bare perusal of the lay out it is gathered that Plot No. 1 has been shown and if the plotting is counted, Plot No. 3 (plaintiffs plot) can very well be ascertained which is situated after Plot No. 2. It has been specifically mentioned in para 1 of the plaint that on the north side there is road, on south side there is a Gali, on east side there is Plot No. 4 and on west side there is Plot No. 2. Thus the four boundaries mentioned in the plaint do tally with the lay out plan as on the north side road is found, on southern side there appears to be a Gali, on east side Plot No. 4 is found and on the west side Plot No. 2 can be gathered and, therefore, there is sufficient description in regard to the identity of the suit property as envisaged under Order VII, Rule 3, Code of Civil Procedure in the plaint and the suit property is ascertainable. 13. On close scrutiny of Rule 3 of Order VII, Code of Civil Procedure it is gathered that plaint is required to contain a description of the property sufficient to identify it. It has been further mentioned in this provision that in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. I have mentioned hereinabove that the four boundaries have been mentioned in the plaint and from these four boundaries the suit property can be very well ascertained. Apart from this the four boundaries mentioned in plaint do tally with the lay out plan filed by the defendants. This Court in the case of Raja Bai (Manila) v. Dropadi Bai, 1995(1) MPWN 19 while considering the provision of Order VII of Rule 3, Code of Civil Procedure has specifically held that in this provision it has been specifically mentioned that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaintiff must specify such boundaries or numbers. This Court further held that there is no mention in this provision of providing any map. This Court further held that there is no mention in this provision of providing any map. It simply requires that there must be sufficient description to identify the property in dispute. I have already held hereinabove that the disputed property is ascertainable and can be identified. Hence, according to me, there is sufficient description in the plaint to get the disputed property identified and, therefore, finding of learned trial Court that there is no material on record in order to ascertain where the disputed plot is situated, is contrary to the material placed on record. 14. On bare perusal of the Certified copy of the sale-deed dated 30-8-1974 which is on record it is revealed that there is recital of delivery of possession to the plaintiff and since it is a registered document, prima facie it can be safely held that plaintiff is owner of the suit property having possession over it. 15. On bare perusal of the record of the trial Court it is gathered that vide order dated 5-3-2002 the report of Commissioner of spot inspection was rejected. This Court fails to understand that if the said report of spot inspection of Commissioner was already rejected by the trial Court, why the same was placed reliance while rejecting plaintiffs application under Order XXXIX, Rules 1 and 2, Code of Civil Procedure Code. The view of this Court is that since spot inspection report submitted by Commissioner was already rejected it should not have been placed reliance by learned trial Court while rejecting the application of plaintiff. 16. On the basis of material placed on record there appears to be a prima facie case in favour of the plaintiff, prima facie possession of plaintiff is also found on the suit property and if he is dispossessed from the suit property, he shall suffer irreparable loss, the balance of convenience is also in his favour. 17. Resultantly this appeal succeeds and is hereby allowed. The impugned order passed by the trial Court is set aside and the application for issuance of temporary injunction filed by the appellant in the trial Court is hereby allowed. The defendants are hereby restrained from interfering with the possession of plaintiff over suit property till the disposal of the suit. The appellant shall also be entitled for the cost of this appeal. Counsel's fee Rs. 1,000/-, if pre-certified. Appeal allowed.