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2020 DIGILAW 612 (MP)

Mohd. Abdulla v. Smt. Janki And Others

2020-05-21

SANJAY DWIVEDI

body2020
JUDGMENT 1. This petition is under Article 227 of the Constitution of India. Pleadings are complete. Parties are ready to argue the matter finally and, accordingly, it is finally heard. 2. This petition is against the order dated 22.01.2019 (Annexure-P/9) passed by the Third Additional District Judge, Shahdol, in a miscellaneous civil appeal filed under Order 43 Rule 1(r) of the Code of Civil Procedure whereby the appellate Court has granted temporary injunction in favour of the plaintiff/respondent No.3 herein. 3. In a suit preferred by the plaintiff/respondent No.3 herein for grant of decree of permanent injunction, an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure for grant of temporary injunction was filed, but that was rejected, then an appeal was preferred under Order 43 Rule 1(r) of the Code of Civil Procedure, which has been decided by the order impugned and hence, this petition. 4. The facts leading to the present petition in a nutshell are as under:- That respondent No.3/plaintiff filed a suit for granting decree of permanent injunction against the defendants especially the present petitioner/defendant No.3 in the suit. As per the averments made in the plaint, the father namely, late Bala Dheemar, of defendant Nos. 1 and 2, who are respondent Nos.1 and 2 herein, owned and possessed the land situated over Khasra No.743 area measuring .05 decimal or .020 hectares. Except defendant Nos.1 and 2, there was no other successor of late Bala Dheemar and after lapse of time, Khasra No.743 has been divided in four parts and as such, recorded in the revenue record as Khasra No.743/1 to 743/4 respectively. Late Bala Dheemar in his lifetime got defendant Nos.1 and 2 married and they used to reside in their in-laws house. After the death of Bala Dheemar, defendant Nos.1 and 2 inherited the property of Bala Dheemar. Since they used to reside in village Pongari and the land in question situates over village Sohagpur, they intended to sell the property and made a proposal before the plaintiff/respondent No.3 herein. An agreement to sell i.e. Annexure-P/2 was executed on 24.03.2001. In pursuance to which, it was agreed to sell on a consideration of Rs.25,000/- which was paid in cash at the time of execution of the agreement and as such, registered agreement was executed. An agreement to sell i.e. Annexure-P/2 was executed on 24.03.2001. In pursuance to which, it was agreed to sell on a consideration of Rs.25,000/- which was paid in cash at the time of execution of the agreement and as such, registered agreement was executed. Since the name of defendant Nos.1 and 2 had not been recorded in the revenue record after the death of Bala Dheemar, therefore, it was assured that after getting their names mutated, sale-deed would be executed in pursuance to the agreement to sale. An affidavit was also sworn by the respondents/defendant No.1 and 2 stating therein, since they received the whole amount of consideration, therefore, possession of the land was handed over to the plaintiff/respondent No.3 herein and after mutation of their names, the sale-deed would be executed. It is also stated in the plaint that the land situated within the scheduled area and as such, permission for selling the land from the Collector is required as per requirement of Section 165 of the Madhya Pradesh Land Revenue Code, 1959 (for short the Code 1959). Proceedings for seeking permission were initiated and pending and as soon as the permission is granted, the sale-deed would be executed. The plaintiff/respondent No.3 was in possession of the land and was using the same from the date of agreement, but the present petitioner/defendant No.3 started raising construction over his land and tried to dispossess the plaintiff/respondent No.3. A report was made to the police in this regard in Police Station Sohagpur, but no action was taken, then cause of action arose in favour of the plaintiff/respondent No.3 to file a suit for seeking decree of permanent injunction. The defendants filed their reply stating therein that defendant Nos.1 and 2 have never executed any agreement to sale in favour of the plaintiff/respondent No.3 and the said agreement is false and fabricated. Defendant Nos.1 and 2 have stated that they sold the land to defendant No.3/petitioner herein who is raising construction over his land. It is also stated in the reply that in the year 2001, the land was not partitioned and defendant Nos.1 and 2 did not get any separate share from the said land and as such, they had no right to sell the land and to execute any agreement to sale in that regard. It is also stated in the reply that in the year 2001, the land was not partitioned and defendant Nos.1 and 2 did not get any separate share from the said land and as such, they had no right to sell the land and to execute any agreement to sale in that regard. After getting their shares, they sold the land to defendant No.3/petitioner herein and possession of the land was also handed over to him. The name of defendant No.3/petitioner herein got recorded in the revenue record and, therefore, the claim for grant of decree of permanent injunction cannot be granted and the suit deserves to be dismissed. An application i.e. Annexure-P/3 for grant of temporary injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure was filed by the plaintiff/respondent No.3 which was duly replied and denied by the defendants and the trial Court decided the application vide order dated 18.12.2018 (Annexure-P/8) rejecting the application of the plaintiff/respondent No.3 herein on the ground that the plaintiff/respondent No.3 failed to prove his case prima facie in his favour and no case of balance of convenience and irreparable loss is made out in favour of the plaintiff. The order of the trial Court was assailed by the plaintiff/respondent No.3 herein by filing an appeal under Order 43 Rule 1(r) of Code of Civil Procedure and the first appellate Court i.e. the Third Additional District Judge, Shahdol, decided the same vide order dated 22.01.2019 (Annexure-P/9), which is impugned in this petition and reversed the finding given by the trial Court holding that not only prima facie case of balance of convenience but a case of irreparable injury is also made out in favour of the plaintiff/respondent No.3 herein, the application for grant of temporary injunction was allowed restraining the defendants to raise any construction or to make any effort to disturb the peaceful possession of the plaintiff/respondent No.3 herein over the land in dispute. 5. The order of the appellate Court has been assailed by the present petitioner on the ground that the order is illegal as the same is passed upon perverse findings. It is submitted by the learned counsel for the petitioner that the appellate Court exceeded its jurisdiction ignoring the documentary evidence i.e. Annexures-P/6 & P/7 and also the relevant khasras entries establishing the possession of defendant No.3/petitioner herein. It is submitted by the learned counsel for the petitioner that the appellate Court exceeded its jurisdiction ignoring the documentary evidence i.e. Annexures-P/6 & P/7 and also the relevant khasras entries establishing the possession of defendant No.3/petitioner herein. It is also submitted by the learned counsel for the petitioner that the appellate Court has committed an error of jurisdiction granting temporary injunction in favour of plaintiff/ respondent No.3 herein in a suit which was based upon a 17 years old agreement to sale. It is submitted by the learned counsel for the petitioner that the plaintiff/respondent No.3 herein is basically an encroacher as the land in question was purchased by the present petitioner by virtue of registered sale-deed and as such, his name was recorded in the revenue record. Therefore, injunction cannot be granted against the true owner, but this aspect has been ignored by the appellate Court. The learned counsel for the petitioner also submitted that the vendors of the saledeed have given affidavits before the trial Court regarding false and fabricated document i.e. the agreement to sale of 2001, but this aspect has also not been taken note of by the appellate Court while granting temporary injunction in favour of the plaintiff/respondent No.3 herein. 6. Per contra, Shri Pathak, learned counsel appearing for respondent No.3/plaintiff, who is the main contesting respondent, submits that the plaintiff/respondent No.3 is in settled possession over the land in question and on the basis of possessory title, the suit for grant of permanent injunction has been filed. He further submitted that the sale-deed, on which, the petitioner is relying upon, has no legal sanctity for the reason that admittedly the land in question situates over the notified area and without permission of the Collector under Section 165(6) and (10) of the Code 1959, the land cannot be sold. He has questioned the validity of the saledeed by virtue of which, the petitioner/defendant No.3 has claimed himself to be the owner of the land in question. He has drawn attention of this Court towards the document filed along with I.A. No.5248/2019 before this Court and submitted that the land in question got diverted and diversion fees was paid by the plaintiff/respondent No.3 herein. He has drawn attention of this Court towards the document filed along with I.A. No.5248/2019 before this Court and submitted that the land in question got diverted and diversion fees was paid by the plaintiff/respondent No.3 herein. He has also drawn attention of this Court that the plaintiff/respondent No.3 had moved an application for amendment in the plaint whereby he sought a relief for granting decree of specific performance of the contract in pursuance to the agreement to sale dated 24.03.2001 (Annexure-P/2) and also claimed that the sale-deed dated 06.04.2015 (Annexure-P/7) be cancelled, declaring the same null and void. It is also submitted by the learned counsel for plaintiff/respondent No.3 that the appellate Court below has not committed any illegality and error of jurisdiction while granting temporary injunction in favour of the plaintiff/respondent No.3 herein as the appellate Court has found that the plaintiff/respondent No.3 has successfully proved prima facie case in his favour and further proved that balance of convenience is available in his favour and if temporary injunction is not granted, then he would suffer irreparable injury. He also submitted that the order impugned is a reasoned one and the same has been passed well within the jurisdiction of the Court. As such, the same does not call for any interference by this Court. 7. I have heard the factual and rival legal contentions urged by the learned counsel on behalf of the parties and answered the same as discussed hereinbelow. 8. The suit has been filed by the plaintiff/respondent No.3 for grant of permanent injunction on the basis of possessory title which he acquired in pursuance to the agreement to sale dated 24.03.2001 which was a registered document executed by defendant Nos.1 and 2. It is claimed by the plaintiff/respondent No.3 that since the date of agreement he has been in possession of the land in question and the sale-deed could not be executed because it was a condition in the agreement that after completing the formalities of mutation by defendant Nos.1 and 2 and as soon as the permission from the Collector as required under the provisions of Code 1959 is granted, then it would be executed. 9. 9. The trial Court while deciding the application for grant of temporary injunction dealt with the ingredients of grant of temporary injunction in regard to prima facie case and observed in paragraphs-12 and 13 that as per the report of the Revenue Inspector submitted in the month of December 2016, the land shown in possession of the plaintiff/respondent No.3 herein is less than the land comprised in the agreement to sale dated 24.03.2001. It is also observed by the trial Court that there is no report as to who possessed the remaining land. The trial Court has also observed in paragraph-14 in its order that in the agreement to sale there was no mention regarding handing over the possession of the land to the plaintiff/respondent No.3 herein, but a separate affidavit was sworn in that regard which shown that the possession was handed over. The trial Court has found the said affidavit suspicious observing that as to why the said affidavit was required to have been sworn and as to why the agreement did not contain the fact of handing over the possession. The trial Court has placed reliance upon the document i.e. receipt of diversion saying that the same is of year 1959-60 to 2016-17, whereas the agreement was executed in the year 2001. As per the trial Court there was no occasion for the plaintiff/respondent No.3 herein to deposit the diversion fees in the year 1959-60. In paragraph-16, the trial Court has also observed that from the facts and circumstances prevailing, it is clear that there is dispute of boundaries and finally in paragraph-19, the trial Court has observed that in respect of sale-deed executed in favour of the present petitioner, no relief is claimed by the plaintiff/ respondent No.3 herein, therefore, its validity cannot be examined and it also observed by the trial Court that the existence of said sale-deed cannot be ignored at the time of considering the application of grant of temporary injunction and as such, decided the application holding that there is no prima facie case made out in favour of the plaintiff/respondent No.3 herein. 10. The order of the trial Court was assailed in an appeal before the appellate Court. The appellate Court has considered the correctness of the order of the trial Court. 10. The order of the trial Court was assailed in an appeal before the appellate Court. The appellate Court has considered the correctness of the order of the trial Court. The appellate Court has further re-appreciated the facts and also examined as to whether the plaintiff/respondent No.3 herein was able to prove the ingredients for granting temporary injunction. 11. As per the provisions of Order 39 Rule 1 and 2 of the Code of Civil Procedure, before granting temporary injunction, the Court is required to see and examine the basis principle i.e. prima facie case, balance of convenience and irreparable injury. A prima facie case implies the probability of the plaintiff obtaining a relief on the materials produced before the Court at that stage. Every piece of evidence produced either party has to be taken into consideration in deciding the existence of a prima facie case to justify issuance of temporary injunction. It is obligatory for the Court to form an opinion of a prima facie case of the plaintiff and to grant of temporary injunction, the Court must perforce examine the merits of the case and to the fact as to whether there is any likelihood of the suit being decreed. 12. The appellate Court has elaborately considered this aspect and in paragraph-29 of the order impugned given its finding about availability of prima facie case in favour of the plaintiff/respondent No.3 holding that he has obtained the possession by virtue of a registered document i.e. agreement to sale and if he is being dispossessed by any unlawful manner, he has every right to file suit for granting permanent injunction against the person who is trying to dispossess him. The appellate Court has also observed that in view of the report of the Revenue Inspector as has been discussed by the trial Court in paragraphs-12 and 13 of the order, the report was given in the month of December, 2016, in which, the Revenue Inspector has stated that the plaintiff/respondent No.3 was in possession of the land i.e. .013 hectares, which is a part of the land in dispute. The appellate Court has also observed that when there was a specific finding given by the trial Court regarding possession of the plaintiff/respondent No.3 that too by virtue of registered document i.e. agreement to sale, then it was not proper for the Court to hold that prima facie case is not made out in favour of the plaintiff. 13. I have also perused the orders passed by both the Courts below and the observations made therein. 14. Indubitably, the possession of the plaintiff/respondent No.3 herein was found over the land in dispute. The document i.e. agreement to sale is also a registered document containing conditions that the saledeed would be executed after correction of revenue record mutating the name of defendant Nos.1 and 2 and further taking permission from the Collector as the land situated in the scheduled area. In any manner, those conditions prima facie do not appear to be illogical and without fulfilling such requirement it appears to be justified not to get the sale-deed executed. The registered document of agreement to sale does not lose its effect merely because an additional affidavit was sworn by the party that too in respect of the fact of handing over the possession. It is also obvious that since full consideration as shown in the agreement was said to have been paid to the owner of the land, then there was no occasion for not handing over the possession. Although, due to some inadvertance, the fact could not be brought in the agreement, therefore, additional affidavit must have been executed. But, merely because the fact regarding handing over the possession came in the affidavit, the whole agreement which is a registered document, cannot be ignored presuming the same to be forged and fabricated. 15. Shri Pathak, learned counsel appearing for the plaintiff/defendant No.3 has placed reliance upon a decision reported in (2019) 11 SCC 309 parties being Poonam Ram v. Moti Ram and contended that the plaintiff/respondent No.3 herein was in a settled possession of the land in dispute though not the owner, but acquiring the possessory title by virtue of registered document as continuously holding possession over the land since 2001 and, therefore, he has every right to claim decree of permanent injunction. 16. The Supreme Court in case of Poonam Ram (supra) in paragraph-10 has observed as under:- ' 10 . 16. The Supreme Court in case of Poonam Ram (supra) in paragraph-10 has observed as under:- ' 10 . Section 64 of the Limitation Act, 1963 contemplates a suit for possession of immovable property based on previous possession and not on title, if brought within 12 years from the date of dispossession. Such a suit is known in law as a suit based on possessory title as distinguishable from proprietary title. It cannot be disputed and is by now well settled that 'settled possession' or effective possession of a person without title entitles him to protect his possession as if he were a true owner." 17. Further, in paragraph-13 the Supreme Court has observed as under:- ' 13 . It was also observed by this Court in Nair Service Society Ltd. v. K.C. Alexander ( AIR 1968 SC 1165 ) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiffs, and thus be able to raise a presumption prior in time." 18. I have no hesitation to say that the suit filed by the plaintiff/respondent No.3 herein is not of that nature, in which, there is no possibility of granting decree of permanent injunction in his favour. The trial Court has simultaneously considered the very nature of the saledeed executed in favour of the present petitioner/defendant No.3 as objected by the plaintiff/respondent No.3 and even during the course of arguments, it is pointed out by the learned counsel for the plaintiff/respondent No.3 herein that looking to the saledeed which is also part of the record, it can be easily seen that the same is illegal as has been executed by the power of attorney holder in his favour that too without taking any sanction from the Collector. Although, the trial Court in paragraph-19 of its order has given weightage to the sale-deed observing that the same would prevail over the document of agreement to sale and further observed that its validity cannot be examined because the same was not assailed by the plaintiff/respondent No.3 herein in his suit. Although, the trial Court in paragraph-19 of its order has given weightage to the sale-deed observing that the same would prevail over the document of agreement to sale and further observed that its validity cannot be examined because the same was not assailed by the plaintiff/respondent No.3 herein in his suit. However, it is submitted by the learned counsel for respondent No.3 that the plaintiff has already moved an application under Order 6 Rule 17 of the Code of Civil Procedure asking amendment in the plaint and also in the relief clause seeking declaration that the sale-deed executed in favour of the present petitioner be declared void. Thus, in my view, the finding given by the trial Court holding that prima facie case is not made out in favour of the plaintiff, is not proper and, therefore, the appellate Court has rightly reversed the said finding. 19. The learned counsel for the petitioner has although given much stress upon the receipt of diversion, but to form an opinion regarding prima facie case at the stage of considering the application for granting temporary injunction, in my opinion, the document carries no such value on the basis of which an opinion of prima facie case can be formed. When the trial Court had found that the plaintiff/respondent No.3 was in possession of the land in dispute although the same was lesser than what has been shown in the agreement and further found that admittedly there is a dispute of boundaries then, it was also not proper on the part of the trial Court to reject the temporary injunction as claimed by the plaintiff/respondent No.3 herein. 20. Further, both the Courts have also considered the fact in respect of other ingredients of grant of temporary injunction i.e. balance of convenience. As per the observation made in paragraph-43 of the order impugned, in which, the appellate Court has observed that when the plaintiff/respondent No.3 is found in possession of the land in dispute by virtue of a registered agreement to sale and if during the pendency of suit he is dispossessed and any construction is made over the said land, then it would create a chaos if a decree of permanent injunction is granted. To avoid such a situation, granting temporary injunction in favour of the plaintiff/respondent No.3 is a demand of balance of convenience. To avoid such a situation, granting temporary injunction in favour of the plaintiff/respondent No.3 is a demand of balance of convenience. Likewise, the third ingredient i.e. the irreparable injury is concerned, the appellate Court has also considered this aspect and has given its finding in paragraph-44 of the order that when it is alleged by the plaintiff/respondent No.3 herein that the present petitioner is trying to dispossess him from the suit land and is also trying to raise construction over the land and if he is not restrained to raise construction, then the plaintiff/respondent No.3 would face difficulty if, in case, his suit is decreed to remove the construction and would also suffer some injury, whereas if ultimately the suit is dismissed then, the petitioner/defendant No.3 can raise construction. 21. I do not find any infirmity in the observation made by the appellate Court and I also do not find that at any point of time the appellate Court has exceeded its jurisdiction. The finding given by the appellate Court do not suffer from any error of law and the said finding cannot be said to be perverse in any manner. 22. The petition, therefore, is without any substance as the contentions raised by the learned counsel for the petitioner have no force of law. Accordingly, the same is hereby dismissed . 23. As per the facts and circumstances of the case, the parties shall bear their own costs.