Research › Search › Judgment

Madhya Pradesh High Court · body

2025 DIGILAW 520 (MP)

Alok Shrivastav v. Rajendra Singh

2025-08-19

DEEPAK KHOT

body2025
ORDER : The present petition has been filed by the petitioner under Article 227 of the Constitution of India being aggrieved by the order dated 13.5.2025, annexure P/17, passed by 6th District Judge, Damoh, in Miscellaneous Civil Appeal No.7 of 2025, whereby the Miscellaneous Appeal filed under Order 43 Rule 1 CPC challenging the order dated 25.1.2025 annexure P/16 has been dismissed and the order dated 25.1.2025 allowing the application submitted by the respondent/plaintiff under Order 39 Rule 1 and 2 CPC has been affirmed. 2. It has been contended by the petitioner that both the courts below have committed grave error of law in not considering the documents in its true perspective. It has further been submitted that the findings arrived at bythe courts below are perverse to the evidence and material available on record. It has been submitted that the petitioner is a bonafide purchaser of the land in question through registered sale deed dated 10.6.2022, annexure P/8. It is submitted that the petitioner has purchased the land bearing survey number 262/1 ad measuring area 0.75 hectares situated at village Mauja Karaiya Hazari, Halka No.39, Tahsil Damoh, District Damoh. 3. It is submitted that a suit has been filed by the respondent /plaintiff for declaration of sale deed dated 10.6.2022 as null and void and permanent injunction in regard to survey number 260/1 and 262/1 of which details have been mentioned in para 1 of the plaint, annexure P/10. The said numbers were claimed by the respondent/ plaintiff on the basis of allotment of bhumiswami rights, which has been said to be done in favour of father of the plaintiff namely Jamuna Singh. It has been further submitted in the plaint that defendant No.3 Hariram has sold the disputed land to the defendant no.1 Madanlal vide sale-deed dated 26.5.1993, annexure P/1. It has further been averred that the said land was further sold to defendant No.2 vide registered sale-deed dated 10.6.2022, annexure P/8. It has been noticed by the plaintiff on the basis of demarcation report. It has further been averred that the plaintiff has been in possession of half portion of land bearing survey No.262/1 on the basis of Will dated 20.4.2004. It has been noticed by the plaintiff on the basis of demarcation report. It has further been averred that the plaintiff has been in possession of half portion of land bearing survey No.262/1 on the basis of Will dated 20.4.2004. It has been submitted that the petitioner /defendant in collusion with the authorities of the Revenue Department has got conducted demarcation and shown his possession, but, in fact, the respondent /plaintiff has been in possession over 0.61 hectares land of survey no.262/1, wherein his house and well are situated. It has furtherbeen submitted that the demarcation report has been challenged before this Court in M.P.No.4024/2023 by the respondent/ Plaintiff and this Court vide order dated 4.9.2023 has directed to maintain status quo and despite of such an order, the petitioner is trying to dispossess the respondent/ plaintiff from the suit land and on the basis of such pleadings the petitioner has sought declaration that sale deed executed in favour of the petitioner and defendants be declared null and void and the petitioner and the defendants be restrained by permanent injunction by directing not to interfere with the peaceful possession of the respondent/plaintiff. 4. It has further been submitted that the learned court below has considered the prima facie case, balance of convenience and irreparable loss in favour of the respondent/ plaintiff and, therefore, granted relief of temporary injunction. The said order passed by the lower courts are under challenge before this Court in the present petition. 5. Learned senior counsel for the petitioner has submitted that the lower appellate court while deliberating with the facts of the case has opined that there is demarcation report to suggest the possession, but, the same has been challenged by the respondent plaintiff before the higher court and order of the status quo has been granted. 5. Learned senior counsel for the petitioner has submitted that the lower appellate court while deliberating with the facts of the case has opined that there is demarcation report to suggest the possession, but, the same has been challenged by the respondent plaintiff before the higher court and order of the status quo has been granted. The court, on the basis of demarcation report, has opined that in the demarcation report it has been observed by the authority that the respondent /plaintiff has been in possession since last 30 years and such entries and the report of the revenue authorities cannot be the basis to decide the prima facie case in favour of petitioner/ defendant, which require evidence and at the stage of deciding an application under Order 39rule 1 and 2 CPC, these facts are not to be gone into detail and, accordingly, affirmed the order passed by the learned Civil Court by allowing the application under Order 39 Rule 1 and 2 CPC. 6. It has been further contended by learned senior counsel for the petitioner that it is evident from bare perusal of the impugned order that the respondent /plaintiff himself has claimed that on the basis of some Patta, land was granted in favour of his father of survey number 204/3(cid:1)/3, new number 260/1. The land bearing survey No.204/3? area 2 hectare, new number 262/1 has been granted under Patta to predecessor of the petitioner/ defendant. The respondent/ plaintiff has claimed his settled possession over the land which has been granted under Patta to his father as well as on the part of the land which has been granted to the predecessor of the petitioner /defendant Hariram i.e. survey No.262/1. It has been contended by learned counsel for the petitioner that it is abundantly clear from the demarcation report dated 13.7.2015, annexure P/6, that the possession of the suit land, i.e. land bearing survey No.262/1 has been handed over to the defendant No.1/respondent No.2 Madan Lal, predecessor-in-title of the petitioner in presence of respondent/ plaintiff and such demarcation report, annexure P/6 contains his signatures. Thereafter, one demarcation has been sought by the present petitioner which has been done on 18.11.2022 and a Panchnama was prepared, wherein the petitioner/ defendant has been shown the boundaries of his land, however, in last three lines the revenue authorities have observed that on part of survey No.262/1, Rajendra Singh, respondent /plaintiff has been in possession from last 30 years and on the basis of this observation,the respondent/ plaintiff has filed application for temporary injunction. It has further been submitted that this observation in regard to 30 years is baseless and without any cogent material as the respondent authorities themselves with the help of police after proper demarcation had handed over the possession of the suit land to the predecessor of the petitioner Madan Lal in the year 2015 vide annexure P/6. It has further been submitted that the respondent/ plaintiff himself has admitted in the plaint averment that his predecessor has got the land bearing survey No.260/1 under Patta and land bearing Survey No.262/1 has been obtained by one Hariram under patta, therefore, to the extent of land under Survey No.260/1, the possession of respondent/ plaintiff can be protected, but, not against the land which does not belong to respondent /plaintiff. No order protecting his alleged possession can be passed. It has been further submitted that such observation of revenue authorities cannot be made basis because this cannot be termed as settled possession once the possession has been handed over to the petitioner. It has further been submitted that possession of the encroachers (without admitting) cannot be protected by the judicial order. 7. Per Contra, refuting the submissions of learned counsel for the petitioner, counsel for the respondents submitted that the suit has been filed for declaration of sale deed executed in favour of petitioner and his predecessor as null and void on the basis that Patta land could not have been sold without the permission and he obtained the part of the land bearing survey No.262/1 on the basis of Will dated 20.4.2004 (however, it is not averred that who has bequeathed the land through Will in favour of therespondent plaintiff). It has further been averred in the plaint that the respondent/ plaintiff has been in possession from last 30 years on the part of the land bearing survey No.262/1, as his Kuchha house and well are situated on the said land. It has further been averred in the plaint that the respondent/ plaintiff has been in possession from last 30 years on the part of the land bearing survey No.262/1, as his Kuchha house and well are situated on the said land. It has been submitted that the possession of the respondent/ plaintiff is settled possession and as per the dictum of the Hon. Apex Court in the case of Rama Gowda (D) by LRS. Versus M Varadappa Naidu (D) by Lrs & Anr., AIR 2004 SC 4609 , such possession cannot be taken over without due process of law. It has further been submitted that this Court vide order dated 22.3.2021 in the case of Jai Singh Vs. State of M.P. passed in M.P.No.643/2021 (Gwalior Bench) has held that the appellate Court while dealing with the application of temporary injunction cannot interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. The appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion and, accordingly, the petition has been dismissed finding that the petitioner therein could not submit any material to show his prima facie case and prayed for rejection of this petition. 8. Learned counsel for the petitioner to bolster his submission in regard to prima facie case and grant of temporary injunction has relied on theorder passed by the Hon. Apex Court in the case of Premji Ratansey Shah and others Vs. Union of India and Others, (1994) 5 SCC 547 , to state that the temporary injunction cannot be granted against a true owner. The issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. Injunction is a personal right under section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. Injunction is a personal right under section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction. He further relied on the judgment passed by this Court in the case of State of Madhya Pradesh Vs. Ismail Khan, 2006 SCC Online MP 844, to state that the unlawful possession cannot be protected by perpetual injunction. Similar views have been shown by citing judgments of this Court in Devendra Kumar Vs. State of M.P. 2013 SCC Online MP 4830, order dated 30.9.2019 passed in the case of Smt. Kapoori Vs. State of M.P. in M.P.No.5104/2019 (Gwalior Bench) and order dated 1.4.2025 passed in the case of Kishan Vs. State of M.P. in M.P.No.837/2025 (Indore Bench) and prayed that respondent No.1/ plaintiff himself has come with the case that his predecessor has been allotted land bearing Survey No.260/1 and, therefore, except land bearing survey No.260/1, no protection can be granted to the respondent/ Plaintiff. 9.Heard the learned counsel for the parties and perused the record. 10. The challenge, which has been made by the petitioner in respect of sale deed, is a subject of trial, which is not the subject matter of the petition and cannot be looked into at this stage while deciding an application underOrder 39 Rule 1 and 2 CPC. 11. So far as question of possession which is to be gathered from the documents submitted by the parties is concerned, it is demystified by Panchnama dated 13.7.2015, annexure P/6, that possession has been handed over to the predecessor of the petitioner with the help of police force, meaning thereby, the respondent plaintiff had resisted to give the possession peacefully despite of the orders passed by the revenue authorities under section 250 of the M.P. Land revenue Code. The sole basis of the respondent/ plaintiff and the orders passed by the Courts below is the subsequent demarcation report dated 18.11.2022, wherein some observation in regard to possession of respondent /plaintiff has been made in the Panchnama, but, the respondent /plaintiff could not point out that after handing over of possession vide annexure P/6 with the help of Police force, when he re-entered into possession on the part of survey No.262/1. For the sake of arguments, if it is considered that he has re-entered the possession (without admitting it), which has been observed by the revenue authorities, then such possession cannot be said to be legal possession or settled possession also because once the possession has already been taken over by the revenue authorities with the help of police force then any subsequent observation or possession does not create any prima facie case in favour of the respondent/ plaintiff. Such possession (without admitting) being illegal possession cannot be protected by the judicial orders as held by the Hon. Apex Court in the case of Premji Ratansey Shah (supra). 12. The Hon'ble Apex Court in the case of Mahadeo Savlaram Shelkev. Pune Municipal Corpn., (1995) 3 SCC 33 held that it is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. Hon'ble Apex Court in the case of Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137 has held as under :- "25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963, can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn. [ (1995) 3 SCC 33 ] it was held, after referring to Woodroffe : Law Relating to Injunctions; Goyle, L.C. : Law of Injunctions; Bean, David : Injunctions; Joyce : Injunctions and other leading articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha v. Municipal Corpn. In that context this Court quoted Shiv Kumar Chadha v. Municipal Corpn. of Delhi [ (1993) 3 SCC 161 ] wherein it was observed that injunction is discretionary and that : (SCC p. 175, para 31). “[Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court.” 26. Reference was also made to Dalpat Kumar v. Prahlad Singh [ (1992) 1 SCC 719 ] in regard to the meaning of the words “prima facie case” and “balance of convenience” and observed in Mahadeo case [ (1995) 3 SCC 33 ] that : (SCC p. 39, para 9) “9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession.” 27. The question of forcible possession as claimed is also a matter which can be pressed into service by the parties before the trial court and if raised, the court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with law. We do not think it necessary to express any opinion in that regard. 13. The Apex Court in the case of Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, (2022) 12 SCC 128 has held as under :- 25. An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular caseas consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law. 14. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law. 14. More so, it is the case of the respondent /plaintiff that his predecessor-in-title has obtained the land under patta of survey No.260/1, then in absence of any averment that how the respondent/ plaintiff or his predecessor came into possession of survey No.262/1 and under what capacity the Will has been executed in respect of part of survey No.262/1 (that too, the name of Testator has not been disclosed in the plaint) cannot establish prima facie case in favour of the respondent/ plaintiff. 15. The appellate court in the impugned order however, has given finding in respect of two distinct survey numbers, but has folded his hands to exercise its jurisdiction to reverse the order of the civil court passed under Order 39 Rule 1 and 2 CPC by holding that the observation in the demarcation report is a matter of evidence and cannot be looked into at the stage of granting temporary injunction. However, in the considered opinion of this Court, such approach is not in consonance with the law laid down by the Hon. Apex Court in the case of Premji Ratansey Shah (supra). The court must exercise its discretion judicially to grant the equitable relief. The relief of temporary injunction as held by the Hon. Apex court cannot be granted against the true owner. Any stray observation, that too without any basis, cannot be made the sole criteria for deciding the application under Order 39 Rule 1 and 2 CPC. It is not disputed that the order passed under section 250MPLRC for dispossession of the respondent/ plaintiff has attained finality. The demarcation report on the application of the respondent/ plaintiff has also been disputed and the petitioner himself has filed the Miscellaneous Petition before this court, where status quo has been granted. 16. When case of respondent/plaintiff is tested on the touchstone of principle laid down in the case of Rama Gowda (supra) and Jai Singh (supra), it is found that respondent/ plaintiff cannot be said to be in settled possession of land bearing survey no.262/1. 16. When case of respondent/plaintiff is tested on the touchstone of principle laid down in the case of Rama Gowda (supra) and Jai Singh (supra), it is found that respondent/ plaintiff cannot be said to be in settled possession of land bearing survey no.262/1. This Court is not substituting its discretion but has found manifest error of jurisdiction exercised by lower courts in not considering law of temporary injunction in its true perspective. 17. In such peculiar facts and circumstances of the case, the possession of the respondent/plaintiff can be protected by way of interim relief to the extent of land bearing survey No.260/1, which has been allotted to his predecessor-in-title and not against survey No.262/1. Accordingly, the petition of the petitioner succeeds to the extent the protection granted to respondent/plaintiff by way of temporary injunction in respect of land bearing survey No.262/1 is hereby set aside and protection to the extent of survey No.260/1 is maintained. 18. Accordingly, the petition is disposed of. No order as to cost.