Shiv Prasad Joshi (Died) Through ... vs Municipal Corporation
2021 Latest Caselaw 2577 Chatt

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                                                                   NAFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                          MA No. 10 of 2021

 Shiv Prasad Joshi (Died) Through Legal Representatives-

   1. - Dev Prasad S/o Late Shri Shiv Prasad Joshi, Aged About 58 Years
   R/o Satnamipara, Telibanda, Raipur, Chhattisgarh.

   2. - Bheshram, S/o Late Shri Shiv Prasad Joshi, Aged About 55 Years R/o
   Satnamipara, Telibanda, Raipur, Chhattisgarh.,

   3. - Itwari D/o Late Shri Shiv Prasad Joshi, Aged About 50 Years R/o
   Satnamipara, Telibanda, Raipur, Chhattisgarh.,

                                                            ---- Appellants

                               Versus

1. Municipal Corporation Through Commissioner, Raipur (Chhattisgarh),

2. Ishwari Bai, W/o Late Shri Jamunadas, Aged About 72 Years R/o Main
   Road, Telibanda, Raipur Chhattisgarh.,

3. Haresh Kumar Govindani, S/o Late Shri Khiyal Das, Aged About 42 Years
   R/o Main Road, Telibanda, Raipur Chhattisgarh.,

4. Nitesh Kumar Bulchandani, S/o Shri Manoharl Lal, Aged About 22 Years
   R/o Main Road, Telibanda, Raipur Chhattisgarh.,

5. Shyam Lal Tejwani, S/o Shri Rupchand, Aged About 45 Years R/o Main
   Road, Telibanda, Raipur Chhattisgarh.,

6. Lal Chand Bulchandi, S/o Shri Kanahiyalal, Aged About 39 Years R/o
   Main Road, Telibanda, Raipur Chhattisgarh.,

7. Manoj Kumar Bulchandi, S/o Shri Kanahiyalal, Aged About 35 Years R/o
   Main Road, Telibanda, Raipur Chhattisgarh.,

8. Lila Devi Khatwani, S/o Shri Harbakash, Aged About 65 Years R/o Main
   Road, Telibanda, Raipur Chhattisgarh.,

9. Manoj Makhija, S/o Shri Mulchand Makhija, Aged About 44 Years R/o
   Main Road, Telibanda, Raipur Chhattisgarh.,

10. Amit Mulchandani, S/o Shri Manoharlal, Aged About 28 Years R/o Main
    Road, Telibanda, Raipur Chhattisgarh.,

11. Ashudamal Tolani, S/o Bhagchand Tolani, Aged About 50 Years R/o Main
    Road, Telibanda, Raipur Chhattisgarh.,
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     12. Devibai Ahuja, W/o Shri Dhanraj Ahuja, Aged About 42 Years R/o Main
         Road, Telibanda, Raipur Chhattisgarh.,

     13. J.B. Chandrakar, S/o Shri A.P. Chandrakar, Aged About 40 Years R/o
         Main Road, Telibanda, Raipur Chhattisgarh.,

     14. Gajanand Chhabra, S/o Shri Bisandas Chhabra, Aged About 50 Years
         R/o Main Road, Telibanda, Raipur Chhattisgarh.,

                                                                ---- Respondents

For Appellants : Shri Manoj Paranjpe along with Shri Aditya Tiwari & Shri Subhank Tiwari, Advocate.

For Respondent No.1 : Shri Saurabh Sharma, Advocate.

Hon'ble Shri Justice Sanjay S. Agrawal

Order on Board 27.09.2021

1. By way of this appeal, the appellant/plaintiff has questioned the order

impugned 28.01.2021 passed in Civil Appeal No.83-A/2019, whereby the

learned lower appellate Court has refused the appellants' application filed under

Order 39 Rule 1 & 2 of the Code of Civil Procedure, 1908 (hereinafter referred to

as the CPC).

2. From perusal of the record, it appears that the plaintiff is claiming

declaration to the effect that the property in question bearing Kh.No.641/1

admeasuring 1500 sq.ft. situated at Telibanda, District Raipur has been allotted

to him by the Municipal Corporation, Raipur. It is contended further by the

plaintiff that his grandfather, namely, Sumeri Satnama was in possession and for

the last 60 to 70 years, the plaintiff is in possession while raising a Kachcha hut

over it. It is alleged by the plaintiff that the Municipal Corporation is trying to

dispossess him forcibly in order to raise a commercial complex over it and if he

dispossessed and the property in question is allotted to others, it would then

cause irreparable loss to him.

3. It further appears from the judgment and decree passed by the trial Court

on 22.05.2019 in Civil Suit No.29-A/2013 that the plaintiff has not been found to

be the lessee of the property in question and accordingly the claim of him was

dismissed by the concerned trial Court and being aggrieved with the same, an

appeal was preferred before the lower appellate Court, who upon considering

the application filed by the plaintiff/appellant under Order 39 Rule 1 & 2 of CPC,

has rejected the same. Since the plaintiff has failed to establish the fact that the

property in question admeasuring 1500 sq.ft. of Kh.No.641/1 was allotted to him

by the Municipal Corporation, Raipur, and therefore, the Court below has not

committed any illegality in refusing the said application.

4. In view of the finding recorded by the appellate Court holding that the

plaintiff has failed to establish the three essential ingredients required for

issuance of temporary injunction, I am not inclined to entertain this appeal.

5. The appeal, being devoid of merit, is hereby dismissed at admission

stage itself. No order as to costs.

Sd/-

(Sanjay S. Agrawal) Judge

Anjani