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2023 DIGILAW 899 (MP)

Naharsingh v. Raksha

2023-11-07

S.A.DHARMADHIKARI

body2023
ORDER 1. Heard on the question of admission and interim relief. 2. In this petition under Article 226 of Constitution of India, petitioners have challenged order dated 15.12.2022 passed in RCS A/275/2022 passed by Civil Judge, Junior Division Jobat Distt. Alirajpur and order 10.4.2022 passed in RCSA/50/2022 by the District Judge, Alirajpur whereby application under Order 39 rule 1 and 2 of the CPC filed by the respondent/plaintiffs has been allowed and confirmed. 3. Necessary facts for adjudication of this case are that respondents/plaintiffs have instituted a suit seeking the reliefs of declaration, partition and permanent injunction for the ancestral property(details are given in tabular form) on the basis of being daughterin-law of petitioner no.1 after the death of her husband – Dheerendra. Serial No. Property Gram Gherughati, Tehsil Azad Nagar, Alirajpur Area Nagar, Alirajpur Area (in hectare) 1 Survey No. 135/3 0.150 2 Survey No. 163 0.450 3 Survey No. 167 0.550 4 Survey No. 225 0.190 5 Survey No. 226 0.450 6 Survey No. 227 0.190 7 Survey No. 237 0.550 8 Survey No.270/1 0.500 9 Survey No. 271 0.410 10 Survey No. 273/1 0.240 11 Survey No. 274 0.290 Total 3.970 Property purchased through income of above land Serial No. Property Gram Gherughati, Tehsil Azad Nagar, Alirajpur Area Nagar, Alirajpur Area (in hectare) 12 Survey No. 43/3 0.150 13 Survey No. 50/1/2 0.130 Property purchased in name of Sumitra Serial No. Property Gram Gherughati, Tehsil Azad Nagar, Alirajpur Area Nagar, Alirajpur Area (in hectare) 14 Survey No. 7/25 0.202 4. The respondent No.1 and 2 had filed an application under Order 39 rule 1 and 2 r/W section 151 CPC seeking injunction restraining the petitioners from alienating the property in question during the pendency of suit. The petitioners opposed the application for injunction by filing reply specifically stating that parties belong to Schedule Tribe community and, therefore, provisions of Hindu Succession Act are not applicable to them as they are governed by their own customary laws. Petitioner no.1 further stated that land mentioned at Serial No.(s) 3,4,6 12 and 14 is of the sole ownership of the petitioner no.1 The land mentioned at Serial No. 1, 2 and 7 has been received in partition by the petitioner no.1. The land mentioned at Serial No. 14 of the table is of the ownership of petitioner No.2. 5. Petitioner no.1 further stated that land mentioned at Serial No.(s) 3,4,6 12 and 14 is of the sole ownership of the petitioner no.1 The land mentioned at Serial No. 1, 2 and 7 has been received in partition by the petitioner no.1. The land mentioned at Serial No. 14 of the table is of the ownership of petitioner No.2. 5. The trial Court after hearing the parties vide the impugned order has partly allowed the application under Order 39 rule 1 and 2 CPC holding that the land mentioned at Serial No.3,4,6,12 and 14 is of the sole ownership of the petitioner No.1 and thus no injunction can be granted restraining the petitioner from alienating the property mentioned at Serial No. 2,3,5, 7 to 11. The respondent No.1 and 2 being aggrieved by the order dated 15.12.2022 preferred miscellaneous appeal before the Appellate Court under Order 43 rule 1(r) of CPC which was registered as MCA No. 1/2023 since no order was passed by the trial Court in respect of the land mentioned at Serial No. 1 and 14. Thereafter, the appellate Court vide order dated 10.4.2023 partly allowed the appeal of the respondent No.1 and 2 thereby further restraining petitioners from land situated at Serial No. 1 and 14 in addition to the injunction order passed by the trial Court. Being aggrieved, the petitioners preferred this petition. 6. Learned counsel for the petitioners/defendants submitted that the trial Court as well as the appellate Court have committed apparent error on the face of the record in passing the impugned orders without considering the prima facie case, balance of convenience and irreparable injury in its proper perspective. The documents available on record have not been taken into consideration. Under such circumstances, the orders are vitiated and deserves to be set aside. 7. Heard learned counsel for the petitioner. 8. Learned trial court as well as learned appellate Court prima facie come to the conclusion that prima facie case, balance of convenience and irreparable loss lies in favour of respondent no.1 and 2. Both the Courts below have given concurrent findings after considering basic elements regarding existence of prima facie case, balance of convenience and irreparable injury and allowed the injunction application directing the parties not to alienate the suit property. 9. Both the Courts below have given concurrent findings after considering basic elements regarding existence of prima facie case, balance of convenience and irreparable injury and allowed the injunction application directing the parties not to alienate the suit property. 9. While exercising discretion for grant of interim injunction the following three principles are applied: (i) Whether plaintiff has a prima facie case; (ii) Whether balance of convenience is in favour of the plaintiff; (iii) Whether the plaintiff would suffer irreparable injury if temporary injunction is declined. 10. The trial Court, as well as, the first appellate Court have exercised the jurisdiction to deal with the prayer of injunction on the aforesaid sound principles of law. 11. Further, it is well settled that conduct of the parties is a relevant consideration for grant of injunction, as this Court in Rajesh Mishra v. Rajesh Vilas Singh Kushwaha (2015 (2) MPLJ 698) has observed thus: "13.The Apex Court in 2010 (2) JLJ 210 , Narendra Kante v. Anuradha Kante and others opined that, while considering an application for grant of injunction, the Court has not only to take into consideration the basic elements regarding existence of a prima facie case, balance of convenience and irreparable injury, it has also to take into consideration the conduct of the parties since grant of injunction is an equitable relief. 14. This Court in 1986 (1) MPWN 159 , Kamal Singh v. Jairam Singh opined 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 is taken by this Court in 1990 (1) MPWN SN 136, Dattatraya Vaishampayan v. Janakarya Vibhag Karmachari Grih Nirman Sahakari Samiti" 12. That apart, in the case of Mohd Mehtab Khan & Ors 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 appellate Court have duly considered the elements of prima facie case, balance of convenience and irreparable injury which may be caused. In the instant case, the trial Court, as well as, the appellate Court have duly considered the elements of prima facie case, balance of convenience and irreparable injury which may be caused. The first appellate Court has further found that no order has been passed in respect to land mentioned at Serial No. 1 and 14 by the trial Court and partly allowed the appeal granting further injunction in respect of land mentioned at Serial No. 1 and 14 in favour of the respondent No.1 and 2. 13. Hence, I do not find any apparent error committed by both the Courts below so as to invoke inherent powers under Article 227 of the Constitution of India. The petition being without any merit fails and is hereby dismissed. It is made clear that the observations in this order shall not affect the merits of the case before the trial Court in any manner.