Chattisgarh High Court
Mani Lal Sahu vs Madan Lal Agrawal on 27 January, 2022
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HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
MA No.53 of 2021
Mani Lal Sahu Versus Madan Lal Agrawal
THROUGH VIDEO CONFERENCING
27/01/2022 Shri Sanjay Patel, counsel for appellants.
Shri Ashutosh Shukla, counsel for respondents No.4, 13, 14 & 19.
Shri Ashish Gupta, Panel Lawyer for the State/respondent No.5.
Shri Aadesh Ramteke, counsel appears on behalf of Shri Dhiraj
Kumar Wankhede, counsel for respondent No.6.
Heard on admission.
Order passed separately, signed and dated.
Sd/-
(Sanjay S. Agrawal)
Judge
Tumane
2
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MA No. 53 of 2021
1. Mani Lal Sahu S/o Late Nandlal Sahu, Aged About 49 Years
2. Arjun Lal Sahu S/o Late Nandlal Sahu Aged About 60 Years
3. Anju Sahu S/o Late Nandlal Sahu, Aged About 47 Years
4. Smt. Shyam Bai D/o Late Nandlal Sahu (W/o Bhuneshwar Prasad
Sahu) Aged About 50 Years
5. Smt. Shakun Sahu W/o Bhikham Lal Sahu, Aged About 42 Years
6. Pawan Kumar Sahu S/o Bhikham Lal Sahu, Aged About 19 Years
7. Sunita Sahu D/o Bhikham Lal Sahu, Aged About 22 Years At
Present R/o Mudapaar Shivarinarayan, Tehsil Nawagarh, District
Janjgir Champa Chhattisgarh
8. Kumari Puja Sahu, D/o Bhikham Lal Sahu, Aged About 23 Years
At Present R/o Tiwaripara, Kharoud, Tehsil Pamgarh, District
Janjgir Champa Chhattisgarh
9. Keshav Sahu S/o Bhikham Lal Sahu Aged About 20 Years
Appellants from 1 to 6 and 9 are R/o Purani Basti, Korba, District
Korba (Chhattisgarh), District : Korba, Chhattisgarh
---- Appellants
Versus
1. Madan Lal Agrawal S/o Late Shri Mani Ram Agrawal Aged About
67 Years R/o Vastralaya, Shop No. B-1, B-2, B-3, Heera Nand
And Sons Complex, Power House Road, Korba, District Korba
Chhattisgarh.
2. Raman Agrawal, S/o Madan Lal Agrawal, Aged About 35 Years
R/o First Floor Of Sri Ram Vastralaya, Shop No. B-1, B-2, B-3,
Heera Nand And Sons Complex, Power House Road, Korba,
District Korba (Chhattisgarh)
3. Shiv Agrawal, S/o Late Parmeshwari Agrawal Aged About 38
Years R/o Shiv Parda Wala, Heera Nand And Sons Complex,
Power House Road, Korba, District Korba Chhattisgarh
4. Moti Lal Sahu S/o Late Nand Lal Sahu Aged About 50 Years R/o
Purani Basti, Korba, Tehsil And District Korba (Chhattisgarh),
5. State Of Chhattisgarh Through Collector Korba, District Korba
(Chhattisgarh)
6. Municipal Corporation, Korba Through Commissioner, Municipal
Corporation Korba, District Korba Chhattisgarh
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7. Kapil Jaiswal S/o Ramesh Jaiswal, Aged About 38 Years R/o Star
Sports, Shop No. A-3, Heera Nand And Sons Complex, Power
House Road, Korba, District Korba (Chhattisgarh)
8. Moti Lal Jain, S/o Late Mishri Lal Jain, Aged About 55 Years R/o
Mahavir Jwellers, Shop No. B-4, A-9, A-10, 11 And Anjani Kunj
Shop No. A-8 Heera Nand And Sons Complex, Power House
Road, Korba, District Korba Chhattisgarh.
9. Mahavir Prasad Kediya(wrongly mentioned as Kodiya in
impugned order) S/o Late Badri Prasad Kediya, R/o Chhattisgarh
Readymade Shop No. No.-B-5 And First Floor Heera Nand And
Sons Complex, Power House Road, Korba, District Korba
(Chhattisgarh)
10. Vinod Agrawal S/o Ramcharan Agrawal Aged About 62
Years R/o Laxmi Steel Emporium, Shop No.- B-6 Heera Nand And
Sons Complex, Power House Road, Korba, District Korba
Chhattisgarh
11. Dilip Makwana S/o Vallabh Das Makwana Aged About 44
Years R/o Otis Tailors, Shop No.- A-01, Heera Nand And Sons
Complex, Power House Road, Korba, District Korba
(Chhattisgarh)
12. Mukesh Jain S/o Shri Madan Gopal Jain, Aged About 42
Years R/o Power Matching Centre, Shop No. B-10, Heera Nand
And Sons Complex, Power House Road, Korba, District Korba
(Chhattisgarh)
13. Gouri Shankar Agrawal, S/o Sagarmal Agrawal Aged About
35 Years R/o Peehar Sadi Centre, Shop No. B-15,16,17,18 Heera
Nand And Sons Complex, Power House Road, Korba, District
Korba Chhattisgarh
14. Shankar Lal Agrawal S/o Sagarmal Agrawal Aged About 37
Years R/o Peehar Sadi Centre, Shop No. B-14 Heera Nand And
Sons Complex, Power House Road, Korba, District Korba
(Chhattisgarh)
15. Kusum Khatod W/o Sri Ashok Khatod Aged About 55 Years
R/o Prachir Shri Manjushri Shop No. A-06,07 Heera Nand And
Sons Complex, Power House Road, Korba, District Korba
Chhattisgarh.
16. Gopal Agrawal S/o Sri Ram Prasad Aged About 32 Years
R/o Sonu- Monu Gift Emporium Shop No. B-07 And A-05 Heera
Nand And Sons Complex, Power House Road, Korba, District
Korba Chhattisgarh.
17. Kamalchand Bothara, S/o Mohan Lal Bothara, Aged About
48 Years R/o Shop No. A-02 Heera Nand And Sons Complex,
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Power House Road, Korba, District Korba Chhattisgarh
18. Ajay Bothara S/o Sri Mohan Lal Bothara Aged About 43
Years Bothara Luggage Shop No.-04, Heera Nand And Sons
Complex, Power House Road, Korba, District Korba Chhattisgarh.
19. Smt. Manju Agrawal, W/o Mahesh Agrawal Aged About 37
Years R/o Peehar Sadi Centre, Shop No. B-13 Heera Nand And
Sons Complex, Power House Road, Korba, District Korba
Chhattisgarh.
20. Mahavir Prasad S/o Sri Shyam Lal Agrawal Aged About 65
Years R/o Neelam Garments Shop No. B-09, B-08, Heera Nand
And Sons Complex, Power House Road, Korba, District Korba
Chhattisgarh.
21. Amrit Lal Baghela S/o Narsingh Das, Aged About 62 Years
R/o Parag N.X And Parag Tailors, Shop No. B-11 And B-12 Heera
Nand And Sons Complex, Power House Road, Korba, District
Korba Chhattisgarh.
22. Shakuntala Sahu D/o Late Nand Lal Sahu, Aged About 57
Years R/o Purani Basti, Korba, District Korba Chhattisgarh.
23. Bhagwati Sahu S/o Late Nand Lal Sahu, Aged About 49
Years R/o Purani Basti, Korba, District Korba Chhattisgarh.
24. Smt. Indra Kumar D/o Late Nand Lal Sahu, Aged About 56
Years R/o Purani Basti, Korba, District Korba Chhattisgarh.
---- Respondents
________________________________________________________________
For Appellants: :Shri Sanjay Patel, Advocate
For Respondent Nos. 4, 13, 14 & 19 :Shri Ashutosh Shukla, Advocate
For State/ Respondent No.5 :Shri Ashish Gupta, Panel Lawyer
For Respondent No.6 :Shri Aadesh Ramteke, Advocate
on behalf of Shri Dhiraj Kumar
Wankhede, Advocate
-----------------------------------------------------------------------------------------------
Single Bench : Hon'ble Shri Justice Sanjay S. Agrawal
Order on Board
27.01.2022
1. Challenge to this appeal is the order dated 30.11.2021 passed in
Civil Appeal No.14-A/2020, whereby, the learned appellate court has
rejected the Plaintiffs' application for grant of temporary injunction.
2. Learned counsel for the Appellants/Plaintiffs submits that the
finding of the Court below rejecting the application filed under Order 39
Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908
(for short the C.P.C.) by observing, inter alia, that one co-owner cannot
be restrained by the another co-owner is apparently contrary to law.
According to him, although, a co-owner is in possession over the joint
property but, he has no right to change the user of the property in
question without the prior consent of other co-owners. In support, he
placed his reliance upon the decision rendered by the Supreme Court in
the matter of T. Lakshmipathi And Ors. Vs. P. Nithyananda Reddy
And Ors., reported in (2003) 5 SCC 150.
3. On the other hand, learned counsel appearing for the
Respondents has supported the order impugned as passed by the court
below.
4. I have heard learned counsel for the parties and perused the
entire documents annexed with this memo of appeal carefully.
5. From perusal of the record, it appears that the Plaintiffs have
instituted a suit claiming declaration to the effect that the property in
question be declared to be the ancestral property and they are the co-
owners of it, which was owned by their pre-decessors in interest namely,
Nandlal Sahu and, praying further that the deed of Will, dated 25.9.2010,
purported to have been executed by said Nandlal Sahu, in favour of his
brother, namely, Moti Lal Sahu (Defendant No.4), be declared as null
and void. It is alleged further in the plaint that Defendant No.4 has
inducted Defendant Nos. 1 to 3 and 7 to 21 as his tenants and
Defendant Nos. 13, 14 and 19 through him have started raising
construction over the suit shop comprising of the Complex, known as
"Heeranand and Sons Complex", situated at Power House Road, Korba
without his prior permission, therefore, they may be restrained from
raising any construction over the alleged suit shop.
6. The aforesaid claim of the Plaintiffs has been dismissed by the
trial court vide its judgment and decree dated 06.03.2020 in Civil Suit
No.9-A/2014 as the Plaintiffs have failed to implead one of the sons of
said Nandlal, namely, Jeevan Lal Sahu, who born out of his first wife,
namely, Smt. Neera Bai. Accordingly, the claim of the Plaintiffs claiming
joint ownership over the suit property has been dismissed, which has
been questioned by the Plaintiffs in appeal along with moving an
application under Order 39 Rule 1 and 2 read with Section 151 of
C.P.C., seeking temporary injunction restraining the said Defendants
from raising any construction over the suit shop pending decision of the
appeal. Since, the Plaintiffs claim was dismissed for non-joinder of
necessary party as provided under proviso to Order 1 Rule 9 of C.P.C.,
therefore, the Plaintiffs were not held to be the joint-owners of the
property in question. That apart, Defendant No.4- Moti Lal Sahu is not
alienating the property in question and if he and others have been
restrained from construction and/or repairing the same, then it would
rather cause an irreparable injury to them as they have collected the
materials for it and, in absence of proving the prima face case, the court
below has, therefore, not committed any illegality in rejecting their
application filed under Order 39 Rule 1 and 2 read with Section 151 of
C.P.C.
7. In so far as the reliance placed by learned counsel for the
Appellants in the matter of T. Lakshmipathi And Ors. Vs. P.
Nithyananda Reddy And Ors.(supra) is concerned, the same is
however, not applicable with regard to the facts involved in the present
case as in the instant matter, the other co-owner is not trying to take an
exclusive possession of the property in question or trying to destroy the
same in any manner.
8. In view of the aforesaid background, I do not find any substance in
this appeal, which is accordingly dismissed.
9. No order as to cost.
Sd/-
(Sanjay S. Agrawal)
JUDGE
sunita
