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2017 DIGILAW 1241 (MP)

Samudri Bai v. Mohit Kumar Jain

2017-12-08

VIJAY KUMAR SHUKLA

body2017
ORDER : In the instant petition filed under Article 227 of the Constitution of India, the petitioner has called in question the legality and validity of the order dated 16-3-2013 passed by the 3rd Civil Judge Class-I, Sagar in unregistered Civil Suit No./2013. 2. That the petitioner filed a suit seeking a decree for declaration that the petitioners are the owners in possession of the house situated on khasra No. 201/2 and 222/2, Makronia, District Sagar and the sale deed executed by the respondent Nos. 1 and 2 in favour of the respondent No. 3 is null and void and not binding on the plaintiffs. He also sought a decree for injunction restraining the respondent No. 3 from interfering in the possession of the plaintiff/petitioners. 3. The trial Court by the impugned order directed the plaintiffs to value the suit for injunction as valued for the purpose of declaration and pay ad valorem Court fee on such valuation. Other part of the valuation of the suit and payment of the Court fee of the petitioners/plaintiffs was found to be in accordance with law. 4. Learned counsel for the petitioners submitted that part of the order whereby the petitioners have been directed to value the suit for injunction as valued for the relief for declaration and to pay ad valorem Court fee is illegal and not in accordance with the provisions of law. It is submitted by him that at this stage, the trial Court has only to look into the averments made in the plaint and on the basis of that the Court has to decide that whether the valuation of the suit and the payment of the Court fees is in accordance with law or not. It is submitted by him that the petitioners are in possession of the suit land and therefore, the relief for injunction is not dependent on the main relief. It is further submitted by him that husband of the petitioner No. 1 and father of the petitioner Nos. 2 to 5 was the owner of the suit property and by registered relinquishment deed Munna Lai in whose favour the suit property was purchased by registered relinquishment deed has already relinquished his right, title and interest in the said property. 5. 2 to 5 was the owner of the suit property and by registered relinquishment deed Munna Lai in whose favour the suit property was purchased by registered relinquishment deed has already relinquished his right, title and interest in the said property. 5. The respondent No. 1 himself filed a suit for declaration that he is one of the co-owners of the suit property and the petitioners/plaintiffs have equal right to the suit property including other immovable property left by Shekhar Chand. On the basis of the aforesaid contentions, it is contended, that prima facie, the petitioners/plaintiffs are co-owners of the suit property although on the basis of the relinquished deed they claimed to be exclusive owners. 6. Combating the aforesaid contentions, learned counsel for the respondent No. 1 supported the order passed by the trial Court and submitted that there is no error warranting any interference by this Court under Article 227 of the Constitution of India. He relied on the judgment passed by the Apex Court in the case of Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 : AIR 2008 SC 2033 . 7. Learned counsel for the parties heard. 8. The validity of the order passed in the present case has to be examined on the principles summarised by the Apex Court in the case of Anathula Sudhakar (supra). The Apex Court has summarised the position in regard to valuation of suit for injunction relating to immovable property as under: 17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the Court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. 9. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. 9. In the light of the aforesaid principles culled out by the Apex Court, the pleading of the petitioners/plaintiffs is considered and it is found that the title of the plaintiffs in the present case though he is in possession but is not invulnerable or unchallengeable. It is further recorded by the trial Court as in the present case, the title is based on a deed of relinquishment and therefore, prima facie, the right of the defendants on the suit land cannot be totally discarded. 10. Prima facie, the case of the petitioners falls within clause C of para 17 of the Apex Court judgment. The trial Court has rightly held that in the present case permanent injunction cannot be granted without adjudicating the main relief of the declaration of title and therefore, the relief of the permanent injunction is ancillary to the main relief and is not independent. 11. We do not find any illegality or perversity in the order passed by the trial Court directing the petitioners/plaintiffs to value the suit for injunction as valued for the purpose of declaration of title and to pay ad valorem Court fee on such valuation. 12. Even otherwise, it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Court acting within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of fundamental principle of law and justice. [See Jai Singh v. MCD, (2010) 9 SCC 385 and Shalini Shetty v. Rajendra S. Patil, 2010 (4) M.P.LJ. (S.C.) 590 : (2010) 8 SCC 329 .] Further co-ordinate Bench of this Court in the case of Ashutosh Dubey v. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal, 2004 (3) M.P.LJ. 213 : 2004 (2) MPHT 14 held that Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. (S.C.) 590 : (2010) 8 SCC 329 .] Further co-ordinate Bench of this Court in the case of Ashutosh Dubey v. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal, 2004 (3) M.P.LJ. 213 : 2004 (2) MPHT 14 held that Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied:— (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. Accordingly, the present writ petition is dismissed.