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2016 DIGILAW 960 (MP)

Mata Prasad v. Mahesh Kumar

2016-10-25

ANAND PATHAK

body2016
ORDER 1. Heard. 2. The present petition under Article 227 of the Constitution of India has been preferred by the petitioners, challenging the order dated 28.4.2015 passed by learned Additional District Judge, Lahar District Bhind in Miscellaneous Appeal No.06/2015 whereby the order dated 15.4.2015 passed by the First Civil Judge Class -II, Lahar District Bhind in Civil Suit No.4-A/ 2014 has been confirmed by which the application filed by the petitioners under Order XXXIX rules 1 and 2 of CPC has been rejected. 3. According to learned counsel for the petitioners, the Courts below have erred in passing the impugned orders, rejecting the application preferred by the petitioners/plaintiffs for injunction under Order XXXIX rules 1 and 2 of CPC. The petitioners have instituted a suit for title, permanent injunction and correction of entries against the present respondents/defendants in respect of survey Nos.4767, 4768 and 4769 situated at Mauja Lahar, Tahsil Lahar District Bhind. Along with the plaint, an application under Order XXXIX rules 1 and 2 of CPC was also preferred. The respondents contested the claim of the petitioners. The trial Court after considering the contesting claims, have rejected the application so preferred by the petitioners/plaintiffs under Order XXXIX rules 1 and 2 of CPC on the ground that survey number as indicated by the plaintiffs nowhere indicate that the land belongs to the petitioners/plaintiffs. Neither title nor ownership in any manner has been treated to be of the plaintiffs, therefore, the application got rejected. 4. Against the order of rejection of injunction application, the petitioners have preferred miscellaneous appeal. The appellate Court after considering all the three pillars of injunction i.e. prima facie case, balance of convenience and irreparable injury, came to the conclusion that the claim of the petitioners is not substantive enough, satisfying all the three grounds and rejected the appeal so preferred. The appellate Court has referred the undertaking given by the present respondents/defendants in respect of going on construction undertaken by respondents No.1 to 3. 5. Through this petition, the petitioners have tried to contend that the orders impugned are illegal and without jurisdiction. The main submission of counsel for the petitioners is that the trial Court is not required to see prima facie title, it has to ensure prima facie case/possession of the parties. 5. Through this petition, the petitioners have tried to contend that the orders impugned are illegal and without jurisdiction. The main submission of counsel for the petitioners is that the trial Court is not required to see prima facie title, it has to ensure prima facie case/possession of the parties. According to counsel for the petitioners, the revenue entries from 1954 to 2014 have been filed which reflect ownership of the petitioners as well as possession. He relied upon the judgment rendered by Hon'ble Supreme Court in the matter of Ravi Prakash Agarwal and others v. Rajesh Prasad Agarwal and others [ (2008)12 SCC 144 ] and the judgment rendered by this Court in the matter of Shiv Bihari Shrivastava v. M/s Universal I.N.P. Electricals Ltd. [1991(II) MPWN 4]. 6. On the other hand, learned counsel for the respondents vehemently opposed the submission of petitioners and submitted that the Courts below have rightly passed the orders impugned. The petitioners/plaintiffs are neither title-holder nor possessor of the suit property. In fact survey numbers of the property are different. Respondents No.1 to 3 are undertaking construction over their own survey numbers which are different from the survey numbers which are alleged to be of petitioners. He further relied upon the SDM report obtained which denotes that present respondents No.1to3 are undertaking their construction at their own land. He sought attention of this Court over para 8 of the appellate Court's order which denotes that the land does not belong to the petitioners and defendants No.1 to 3 in any manner. When the petitioners do not have any right, title or interest over the suit property then cannot seek any injunction and prayed for dismissal of the petition. He placed reliance on the judgment of Hon'ble Supreme Court in the matter of Mandali Ranganna and others v. T. Ramachandra and others [ (2008)11 SCC 1 ] and of this Court in the matter of Dattatrya Vaishampayan v. Janakarya Vibhag Karamchari [ 1990(I) MPWN 136 ]. 7. Heard learned counsel for the parties and perused the record. 8. From perusal of record as well as the orders impugned, it appears that Patta as alleged by the petitioners does not reflect ownership of the present petitioners/plaintiffs. No document has been produced by the plaintiffs to suggest title or ownership of the plaintiffs over the suit property. 7. Heard learned counsel for the parties and perused the record. 8. From perusal of record as well as the orders impugned, it appears that Patta as alleged by the petitioners does not reflect ownership of the present petitioners/plaintiffs. No document has been produced by the plaintiffs to suggest title or ownership of the plaintiffs over the suit property. On the other hand, defendants No.1 to3 have specifically submitted about the land in question as their land and submitted some documents in respect of their title, therefore, at this stage, it cannot be inferred that the appellants have some right, title or interest in the property for ascertaining the question of temporary injunction. No jurisdictional error or procedural irregularity has been committed by the Courts below in passing the impugned orders, declining temporary injunction to the petitioners. 9. The Hon'ble Supreme Court in the matter of Shalini Shyam Shetty and another v. Rajendra Shankar Patil [ (2010)8 SCC 329 ], has laid down the guidelines in relation to exercise of supervisory jurisdiction under Article 227 of Constitution of India by this Court. Hon'ble Supreme Court has held that the power under Article 227 of Constitution of India is discretionary and has to be exercised on equitable principle. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the Tribunals and Courts subordinate to High Court. 10. Considering the judgment rendered by the Supreme Court and perusal of the fact that even the petitioners do not have inkling of title and possession over the suit property thus they cannot get temporary injunction in their favour at this stage. Learned Courts below have rightly passed the orders refusing temporary injunction to the petitioners. Resultantly, the petition sans merits is hereby dismissed.