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Madhya Pradesh High Court · body

2014 DIGILAW 694 (MP)

Shivraj Singh v. Raghuveer

2014-06-20

U.C.MAHESHWARI

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Judgment: U.C. Maheshwari, J. 1. He is heard on the question of admission. 2. On behalf of the petitioner this petition is preferred under Article 227 Constitution of India, being aggrieved by the order dated 5.3.2014 passed by 4th Additional District Judge, Sagar in Misc. Appeal No. 5/14, affirming the order dated 29.10.2013 pass by 1st Civil Judge, Class-II, Sagar in COS No. 93-A/13, whereby his application filed under Order 39 Rule 1 and 2 of CPC for issuing ad-interim injunction against the respondent/defendant restraining them to interfere in his possession of the disputed boundary wall till final disposal of the suit has been dismissed. 3. I have carefully gone through the orders of the Courts below and papers placed on the record. 4. As per case of the plaintiff/petitioner the disputed property was purchased by the petitioner from the father of the respondent in the year 1951 through some unregistered sale deed and since then he is coming in possession of the same and till filing the impugned suit he remained in possession but the respondents started illegal activities to demolish the boundary wall, on which the petitioner has filed the impugned suit along with the impugned application under Order 39 Rule 1 and 2 of CPC with the aforesaid prayer for issuing ad-interim injunction against the respondents. The same was defended by the respondents on the ground that such property was never sold to the petitioner by his father through any admissible document and averments of the petitioner stated in the suit as well as in the application were denied. It addition to it, it is also stated by the respondents that they were coming in possession of the disputed property from the time of their father and such possession was never handed over to the petitioner and in such premises, it was stated that there is no prima-facie case or balance of convenience in favour of the petitioner with further averments that even on not issuing any interim injunction no irreparable injury would be caused to the petitioner in pendency of the suit. The parties have also filed their respective documents before the Courts below. 5. After extending the opportunity of hearing to the parties, on consideration in the lack of any legal documents of title in favour of the petitioner his possession was not found over the disputed property. The parties have also filed their respective documents before the Courts below. 5. After extending the opportunity of hearing to the parties, on consideration in the lack of any legal documents of title in favour of the petitioner his possession was not found over the disputed property. It also appears from the impugned orders that the petitioner had failed to prove the source of his legal possession over the disputed property and such application was dismissed by the trial Court. On filing the appeal at the instance of the petitioner/appellant, on consideration by affirming the finding of the trial Court, the same has been dismissed, on which the petitioner has come to this Court with this petition. 6. Having heard the counsel after perusing the papers placed on record along with the impugned orders, I have found that there is concurrent findings of the Courts below that disputed property was not sold to the petitioner at any point of time through legal and admissible document and in such premises the possession of the disputed property has also not been handed over to the petitioner. Pursuant to it, in the lack of prima-facie case and balance of convenience in favour of the petitioner his application has been dismissed. In such premises, it is apparent that any of the Courts below have not committed any error in dismissing the application of the petitioner holding that there is neither prima-facie case nor balance of convenience in favour of the petitioner and on non issuing the prayed interim injunction, the petitioner has not to suffer any irreparable injury during pendency of the suit. Even otherwise, I am of the considered view that in the lack of any admissible document in favour the party like petitioner no interim injunction could be issued in his favour on the basis of inadmissible document. According to the then existing provision of Transfer of Property Act, Registration Act and Stamp Act any document relating to sale of any immovable property was required to be registered and in fact that such document, on which the case of the petitioner is based is not registered documents. According to the then existing provision of Transfer of Property Act, Registration Act and Stamp Act any document relating to sale of any immovable property was required to be registered and in fact that such document, on which the case of the petitioner is based is not registered documents. For the sake of argument, if such document is treated to be an agreement to sale of disputed property in the part performance even then such person who got the possession under the part performance by way of agreement to sale has not right or authority to file the civil suit for declaration against the original owner of the property with whom he has entered in to the agreement. In fact the petitioner had to file the civil suit for specific performance on the strength of such agreement within the prescribed limitation but it is not the case of the petitioner and in such premises, if the possession of the petitioner could not be deemed to be under the part performance of the agreement. Even otherwise under the provision of Section 53 of Transfer of Property Act the petitioner has only a right to defend the possession by using such agreement as shield but such agreement could not be used by the petitioner as sward to file the suit for declaration and perpetual injunction against the true owner of the disputed property. 7. In the aforesaid premises, I have not found any perversity, illegality or anything against the propriety of law in the order impugned which could be interfered at this stage under superintendence jurisdiction of this Court under Article 227 of the Constitution of India, consequently this petition being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing.