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2016 DIGILAW 1153 (MP)

Ayodhya Prasad Tiwari v. Lalman Vishwakarma

2016-12-15

VIJAY KUMAR SHUKLA

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ORDER : Vijay Kumar Shukla, J. This is a petition under Article 227 of the Constitution of India challenging the order dated 06.09.2016 passed by the Upper District Judge, Rampur Baghelan, District Satna (M.P.) in Misc. Civil Appeal No. 69/2015 by which he has allowed the appeal filed by the respondent/plaintiff and has granted temporary injunction restraining the petitioner/defendant no.1 from interfering with the peaceful possession of the respondent no.1. 2. Being aggrieved by the said order the petitioner has filed the present petition submitted that the Court below has committed an error while reversing the order passed by the trial Court. He has further submitted that the Court below has taken a different view while appreciating the facts and evidence which were recorded by the trial Court. 3. From perusal of the order of the Lower Appellate Court, it is apparent as recorded finding in para-6 of the order that the suit land was sold by one Murlidhar Tiwari in favour of the father of the plaintiff/respondent no.1 Lalman Vishwakarma for consideration of Rs.70/-. On the basis of the said document in the revenue records, the possession of the plaintiff has been found to be recorded. 4. The Court below has further considered the affidavits and the depositions of independent eyewitnesses Ramvishal and Manpher who have also admitted the possession of the plaintiff on the suit land and, therefore, the Court below found that the finding of the trial Court that the plaintiff is an encroacher is contrary to the facts. After the evaluation of the facts and evidence, the Lower Appellate Court recorded a finding that there is a prima facie case and other factor of balance of convenience and irreparable loss are in favour of the plaintiff and therefore, the Court below has reversed the order of the trial Court and passed the order of injunction. 5. Since the lower Appellate Court has found a prima facie case, balance of convenience and factor of irreparable loss in favour of the plaintiff, after consideration of facts and evidence, I do not find any illegality or perversity in the impugned order. 6. 5. Since the lower Appellate Court has found a prima facie case, balance of convenience and factor of irreparable loss in favour of the plaintiff, after consideration of facts and evidence, I do not find any illegality or perversity in the impugned order. 6. In view of the law laid down by the Apex Court in the case of (2010) 8 SCC 329 , Shalini Shyam Shetty and another v. Rajendra Shankar Patil and the judgment of this Court in Vinod Kumar Choubey v. Regional Manager, M.P. State Ware Housing Corporation Sagar and others 2016 (2) MPLJ 441 . I do not find any case for interference with the impugned order under Article 227 of the Constitution of India. Accordingly petition stands dismissed.