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2021 DIGILAW 321 (MP)

Munni Devi v. Uttam Singh

2021-03-08

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. The matter is heard on the admission. 2. Challenge is being made to the order dated 20.01.2021 (Annexure P-1) passed by the Tenth Additional Session Judge, Gwalior in Miscellaneous Civil Appeal No. 129/2018, whereby the miscellaneous civil appeal filed by the petitioners against the order dated 18.09.2018 passed by the Fourteenth Civil Class-2, Gwalior has been set aside. It is argued that the petitioners have filed a civil suit with respect to Plot No.. The plot was purchased by the plaintiffs/petitioners vide registered sale deed dated 17.12.2007 from Ashok Grah Nirman Sahkari Samiti Maryadit Gwalior through its Vice-President Manoj Kisan and after purchasing the plot received the possession and NOC. It is argued that they have constructed the boundary wall and are using the plot for keeping Tractor etc. On 16.01.2017 the defendants no. 1 and 2 came to the plot and made a dispute with the plaintiffs husband Yadunath and on 17.01.2017, 8 to 10 persons came to the petitioners' plot and have quarrelled with the petitioner no. 1 and her son Pradeep. The matter was reported to the police authorities but when no response was filed and the civil suit for declaration and injunction was preferred alongwith the application under Order 39 Rule 1 and 2 read with Section 151 of C.P.C.. The respondent no. 2 filed reply to the application that the plot in question A-76 has been allotted to Gwalior Vikash Grah Nirman Sahkari Sanstha on 05.02.2005 and there is no construction of the petitioners on the plot in question. The petitioners have drawn attention of this Court to the notice issued under Section 248 MPLRC for vacating the premises in question and removing encroachment of the petitioners, which goes to show that the petitioner is in possession of the property in question. It is argued that the petitioners are bonafide purchaser of the property in question as the same has been purchased vide registered sale deed dated 17.12.2007 from Ashok Grah Nirman Samiti i.e. Respondent no. 5. It is argued that the petitioners are poor lady and have purchased the plot in question from the respondent no. It is argued that the petitioners are bonafide purchaser of the property in question as the same has been purchased vide registered sale deed dated 17.12.2007 from Ashok Grah Nirman Samiti i.e. Respondent no. 5. It is argued that the petitioners are poor lady and have purchased the plot in question from the respondent no. 5 vide registered sale deed dated 17.12.2007, they are the bonafide purchaser of the property in question and they are in possession of the plot more than 14 years then till the decision of the civil suit, status quo with respect to the property is directed to be maintained. It is argued that for consideration of the application under Order 39 Rules 1 and 2 read with Section 151 CPC prima facie the case is required to be seen. The petitioners are in possession of the property in question itself to show that they are having prima facie case in their favour. If the possession is not protected then the irreparable loss will be caused to them as they are bonafide purchaser of the property in question through registered sale deed from the respondent no. 5. It is pointed out that the respondent no. 4/Gwalior Vikash Grah Nirman Sahkari Maryadit Gwalior was registered in the year 2008 then how the plot could have been allotted to the Sanstha in the year 2005. The aforesaid aspect was not considered by both the Courts below. He has prayed for setting aside the impugned order, and for maintaining status quo with respect to the property in question till disposal of civil suit. 3. Per contra, learned counsel appearing for the respondent no. 3/GDA has supported the impugned order and has argued that there are concurrent findings of both the courts below against the petitioners as the petitioners have failed to prove prima facie case in their favour. The respondent no. 3, by filing a reply to the application, has contended that the plot was allotted to Ashok Grah Nirman Sahkari Sanstha, who is the seller of the disputed plot, but subsequently the allotment was cancelled and the information was given to Ashok Grah Nirman Sahkari Sanstha. It is argued that once the allotment of plot in question to the respondent no. 5 was cancelled. He was having no authority to sell the disputed plot to the petitioners vide sale deed dated 17.12.2007. The respondent no. It is argued that once the allotment of plot in question to the respondent no. 5 was cancelled. He was having no authority to sell the disputed plot to the petitioners vide sale deed dated 17.12.2007. The respondent no. 5 was having no authority to sell the plot in question to the petitioners as vide order dated 05.02.2005 the allotment of plot in question to Ashok Grah Nirman Sahkari Samiti has been cancelled. In the letter dated 17.02.2017 it was mentioned that the plot in question is being allotted to Gwalior Vikas Grah Nirman Sahkari Samiti on 30.03.2005. The aforesaid aspect was considered by both the Courts below. He has relied upon the judgment passed by the Hon'ble Supreme Court in the cases of Ramdas Vs. Sitabai and Others, 2009 (1) SCC 444 and Kashi Math Samsthan and Another Vs. Shrimad Sudhindra Thirtha Swamy and Another, 2010 (1) SCC 689 and has argued that once the authority was having no right to sell the property in question, then the sale deed itself is void ab initio, merely having possession of the property on the basis of vide sale deed does not entitle the petitioners to ask for injunction in the matter, as the encroacher has no right to safeguard this property. It is argued that proceedings were initiated under Section 248 MPLRC for evicting the petitioners from the property in question as per case. It is pointed out that the petition is under Article 227 of the Constitution of India against the concurrent findings of the facts and looking to the judgments passed by the Hon'ble Supreme Court in the aforesaid cases the petitioners are having no right to have possession over the property. The filing of the civil suit does not entitle the petitioners to retain the property in question. 4. Heard the learned counsel for the parties and perused the record. 5. From the perusal of the record, it is seen that the petitioners have purchased the property in question vide registered sale deed dated 17.12.2007 which is Annexure P/7 in the petition. From the reply filed on behalf of the respondent no. 4/Gwalior Vikas Grah Nirman Sahkari Sanstha. It is seen that Gwalior Vikas Grah Nirman Sahkari Sanstha is registered society. From the perusal of the record, it is seen that the petitioners have purchased the property in question vide registered sale deed dated 17.12.2007 which is Annexure P/7 in the petition. From the reply filed on behalf of the respondent no. 4/Gwalior Vikas Grah Nirman Sahkari Sanstha. It is seen that Gwalior Vikas Grah Nirman Sahkari Sanstha is registered society. The registration of the aforesaid society bearing Registration No. D.R.B.W.R./226 dated 23.07.2008 which was mentioned in the reply and the registered Office is F-17 Gandhi Nagar Gwalior. It is further mentioned in the reply that in pursuance to an agreement entered into on 04.07.2000 G.D.A. has allotted the plot in question on 05.02.2005 to the respondent no. 4. It is further seen that the petitioners have purchased the plot in question vide registered sale deed dated 17.12.2007 and the possession of the plot was handed over to the petitioners on 17.12.2008. No Objection Certificate was issued to the petitioners on 10.01.2009 and thereafter a Gwalior Development Authority vide order dated 26.10.2016 has granted permission for mutation to the respondent no. 5. The plot in question was sold to the petitioners vide registered sale deed dated 17.12.2007 and they are in possession of the property. The document dated 06.02.2017 written by the Chief Executive Officer, Gwalior Development Authority, Gwalior to resident of Ashok Grah Nirman Sahkari Samiti clearly reflects the fact that except the plots which were already allotted to the beneficiaries under Anand Nagar and Shatapdipuram Scheme. The remaining plots are being allotted to Ashok Grah Nirman Sahkari Samiti and the plot in question does not find place and the plot in question i.e. A-76 finds allotment on 30.05.2005. In pursuance to the same, the plot in question was subsequently sold to the petitioners who are having the possession of the plot in question. Learned trial Court as well as the appellate Court has considered the aspect that once the respondent no. 5 was having no authority to sell the property in question to the petitioners then the sale deed executed by the respondent no. 5 itself is null and void ab-initio and the petitioners by virtue of the aforesaid sale deed are having no right to hold the possession of the property in question, therefore, the proceedings under Section 248 initiated for vacating the premises in question as the plot was subsequently allotted to the respondent no. 4/Society. 6. 5 itself is null and void ab-initio and the petitioners by virtue of the aforesaid sale deed are having no right to hold the possession of the property in question, therefore, the proceedings under Section 248 initiated for vacating the premises in question as the plot was subsequently allotted to the respondent no. 4/Society. 6. The Hon'ble Supreme Court in the case of Ramdas Vs. Sitabai and Others, 2009 (7) SCC 444 has held as under:- "16. It is settled law under the Transfer of Property Act, 1882 that a purchaser cannot have a better title than what his vender had. The possession which is claimed by the Defendant 3 Ramdas (the appellant herein) in respect of the entire land bearing Gat No. 19 area admeasuring 2.56 H of Mouza Padoli was also illegal and without proper sanction of law. So long as the property is joint and not partitioned, Defendant 3 Ramdas (the appellant herein) is not entitled to get possession of the said land. Even otherwise, the appellant herein having purchased the land from Defendant 1 Sudam could be entitled to be declared at the most to the extent of half-share of the said piece of land having stepped into the shoes of his vendor and could not have asked for and claimed ownership and possession over the entire land of Gat No. 19 admeasuring 2.56 H." 7. The Hon'ble Supreme Court in the case Kashi Math Samsthan and Another Vs. Shrimad Sudhindra Thirtha Swamy and Another, 2010 (1) SCC 689 has held as under:- "16. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court." 8. From the perusal of the aforesaid dictum of the Hon'ble Supreme Court, it is apparently clear that prima facie the case is required to established by the petitioners/plaintiffs and if prima facie the case is not established then the other two requirements fulfilling the basic ingredients for consideration of application under Order 39 Rules 1 and 2 read with Section 151 of CPC does not arise. The Hon'ble Supreme Court in the aforesaid case has further observed that once the authorities is having no right to sell the property in question then the subsequent purchasers are having no better title than the original seller. In the present case, the respondent no. 5 is having no right to sell the property in question. 9. The Hon'ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 has considered the scope of interference under Article 227 of the Constitution of India has held as under:- "(a) In any event, a petition under Article 227 cannot be called a writ petition. 9. The Hon'ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 has considered the scope of interference under Article 227 of the Constitution of India has held as under:- "(a) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (c) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised." 10. There are concurrent findings of both the courts below to the effect that the petitioners are having no right to have possession of the property and prima facie the case could not be proved by the petitioners. The seller i.e. the respondent no. 5 is having no right to execute the sale deed in favour of the petitioners. In such circumstances, the order dated 18.09.2018 (Annexure P/6) passed by the trial Court has duly been affirmed by the Appellate Court vide order dated 20.01.2021 (Annexure P/1) does not call for any interference in the present writ petition. The petition sans merits and is accordingly dismissed. 11. Certified copy as per the rules.