Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 1186 (MP)

Gyankunwar v. State of M. P.

2017-11-20

VIVEK AGARWAL

body2017
ORDER 1. Petitioners have filed this petition being aggrieved by order dated 19.7.2017 passed in Miscellaneous Civil Appeal No.17/2017 by the Third Additional District Judge, Bhind, M.P. rejecting the appeal filed against the order passed by Second Civil Judge, Class II, Bhind, in Case No.1-A/2016 dated 16.4.2016 rejecting an application under Order 39 rules 1 and 2 CPC. It is the contention of the petitioner that late Ranjeet Singh was the Zaminder of the Village Raipura, Tahsil Raun of District Bhind and upto the Abolition of the Zamindari Act, 1951 i.e. Samvat 2007, his name was recorded in the Government records. Petitioners are successors of said late Ranjeet Singh, who was Khudkast and was succeeded by his son Pahalwan Singh. According to the petitioners, they are in continuous possession of the suit land and a case under/section 248 of MPLRC was registered against the petitioners for eviction in the Court of Tahsil Raun and, therefore, it can be safely presumed that petitioners are in possession of the suit land yet the Courts below without looking into the facts of the case and the spot enquiry report dated 17.1.2017 (Annexure P-2), have refused to grant injunction in favour of the petitioners. 2. Learned counsel for the petitioners has placed reliance on the judgment of this Court in case of State of M.P. v. Mangilal, as reported in 2011(4) MPLJ 104 wherein, in paragraph 16, the ratio is that Tahshildar initiated enquiry under section 248 of the Code and, therefore, it is an admitted position that plaintiff was an encroacher but State has not shown that how and what manner and when the disputed land vested in the State. In fact, the State Government is having the entire record and it should have filed it in the Court. Placing reliance on such judgment, he prays for allowing the writ petition. 3. Learned counsel for the State and the private respondents No.3 and 4 submits that in fact this Court in case of Kamal Singh v. Jairam Singh, as reported in 1986 (1) MPWN 159, has held that temporary injunction cannot be claimed merely on the basis of possession. The possession must be legal. Possession of trespassers cannot be protected. 3. Learned counsel for the State and the private respondents No.3 and 4 submits that in fact this Court in case of Kamal Singh v. Jairam Singh, as reported in 1986 (1) MPWN 159, has held that temporary injunction cannot be claimed merely on the basis of possession. The possession must be legal. Possession of trespassers cannot be protected. Same view was taken by this Court in Dattatraya Vaishampayan v. Janankarya Vibhag Karmachari Grih Nirman Sahakari Samiti, as reported in 1990 (1) MPWN 136 , in which it is held that :- “10. That apart, in the case of Mohd Mehtab Khan and others v. Khushnuma Ibrahim Khan [ (2013)9 SCC 221 )], the apex Court has held that if view of the trial Court is a possible view then the appellate Court should not interfere with the same. In the instant case, the trial Court, as well as, the lower appellate Court have duly considered the elements of prima facie, balance of convenience and irreparable injury which may be caused. The first appellate Court has further found that the grounds raised can be adjudicated only after evidence is recorded and rightly refused to interfere with the order of trial Court. 4. In the present case, it is apparent that name of Pahalwan Singh is mentioned in Khasra for Samvat 1999 but in the Khasra for survey also reveals that at survey No.386 land has been shown as Khaliyan. It is also apparent from the impugned order that in paragraph 12, the trial Court has rightly held that whether the disputed land is of the ownership of the plaintiffs or not can be decided after evidence is lead in this regard. As far as Annexure P-2 is concerned, there is a contradictory report in as much as in the order sheet dated 3.1.2017 it is mentioned that in Samvat 2008 in relation to Survey No.386, there is no mention of any owner or agriculturists and land used has been sown as Khaliyan. It is also mentioned as per new settlement Survey No.621 measuring 0.21 has been shown as Government Khaliyan. Thereafter, in another report, it is mentioned that applicants are in possession and have sown mustered crop. There is contradiction in the two reports and further an encroacher is not entitled to claim equity in as much as one who claims equity should also demonstrate equity. Thereafter, in another report, it is mentioned that applicants are in possession and have sown mustered crop. There is contradiction in the two reports and further an encroacher is not entitled to claim equity in as much as one who claims equity should also demonstrate equity. He should come with clean hands and since such encroachments are to be determined by way of evidence, therefore, in the light of the law laid down by Hon'ble Supreme Court in case of Mohd. Mehtab Khan and others (supra), this Court is of the opinion that there is no infirmity or illegality in the concurrent findings recorded by the Courts below. Petition fails and is dismissed. K.N. Gupta with R.S. Rathore for petitioners; Vivek Mishra, Government Advocate for respondent No.1/State; N. K. Gupta with Sanjay Sharma for respondents No.3 and 4.