[Cites 2, Cited by 0]
Chattisgarh High Court
Jethmal Kotadia (Jain) vs Kanhiyalal Kotadia on 17 April, 2026
1
SHOAIB 2026:CGHC:17543
ANWAR
Digitally signed by
SHOAIB ANWAR NAFR
Date: 2026.04.20
17:43:39 +0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
MA No. 65 of 2026
Jethmal Kotadia (Jain) S/o Late Pukhraj Ji Oswal (Jain), Aged About
77 Years R/o Gandhi Ward, Mungeli, Tehsil And District Mungeli
(C.G.)
... Appellant
versus
1 - Kanhiyalal Kotadia S/o Late Pukhraj Ji Oswal (Jain) Aged About 72
Years R/o Gandhi Ward, Mungeli, Tehsil And District Mungeli (C.G.)
2 - State Of Chhattisgarh Through Collector Mungeli, District
Mungeli (C.G.)
... Respondent(s)
(Cause title taken from CIS)
For Appellant : Shri Ankur Agrawal, Advocate
For Respondent(s) : Shri Lekhram Dhruv, Panel Lawyer
Hon'ble Shri Bibhu Datta Guru, Judge
Order on Board
17.04.2026
1. The appellant/defendant has preferred the present appeal
under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908,
being aggrieved by the order dated 09.02.2026 passed by the
learned First Additional District Judge Mungeli (C.G.) in Civil Suit
No. 05-A/2024 (Kanhaiyalal v. Jethmal & Another), whereby the
learned trial Court has rejected the application filed by the
appellant/defendant under Order 39 Rules 1 and 2 read with
Section 151 of the CPC seeking grant of temporary injunction.
2. The plaintiff filed a civil suit for possession and permanent
injunction in respect of a shop constructed on Nazul Sheet No.
38-D, Plot No. 237, admeasuring about 25 sq. mtr. out of total
69 sq. mtr., claiming ownership on the basis of a registered sale
deed dated 05.05.1976. The plaintiff and Defendant No. 1 are
real brothers, and their properties, along with that of another
brother, are situated adjacent to each other and were
constructed around the same time. The plaintiff had
constructed a house over 44 sq. mtr. and the suit shop over 25
sq. mtr. It is stated that, on the request of Defendant No. 1, the
plaintiff permitted him to use the suit shop with a condition
that it would be vacated whenever required. Subsequently,
when the plaintiff needed the shop for his son, Defendant No.
1 avoided vacating the same despite repeated requests,
leaving the plaintiff with no option but to institute the present
suit.
3. In the said suit the Defendant No. 1 filed the written statement
as also the counterclaim along with an application under Order
39 Rules 1 and 2 read with Section 151 of the Code of Civil
Procedure seeking grant of temporary injunction in respect of
the suit property bearing old House No. 8 and new House Nos.
38-B/235, 236, 237 and 238, admeasuring in total 382 sq.
meters, over which a double-storied building consisting of
shops in the front portion and residential accommodation in
the rear portion is constructed. The relief sought is to restrain
the plaintiff and any other person from interfering with his
peaceful possession and business activities, from forcibly
dispossessing him, and from using the suit shop as a passage
during pendency of the suit.
4. The case of Defendant No. 1, as set out in the counterclaim, is
that the suit properties were acquired out of joint family
income in the names of different family members during the
lifetime of their parents and even thereafter. It is contended
that the portion bearing present Municipal No. 38-B/235
(admeasuring 172 sq. meters) was purchased in the names of
their parents, which upon their demise devolved upon the
sons, including the plaintiff, who is residing therein. The
remaining portions bearing Nos. 38-B/236, 237 and 238 were
purchased in the individual names of family members,
including Defendant No. 1.
5. According to Defendant No. 1, a double-storied structure was
constructed over the entire property, wherein the front portion
comprising three shutter shops fell to his share and has been
in his possession, and he has been carrying on his independent
electronics business therein since the year 1980. The rear
portion is in occupation of the plaintiff. It is further pleaded
that a channel gate of about 4 feet width existed between the
portions, through which the plaintiff was permitted to pass to
access his residence due to cordial family relations and mutual
understanding.
6. The Defendant No. 1 alleges that disputes subsequently arose
between the parties regarding their respective shares and
enjoyment of the property. Thereafter, he withdrew the
permissive use and restrained the plaintiff from entering his
portion. However, the plaintiff and his family members
allegedly attempted to forcibly enter the premises and
interfere with his possession and business. Specific incidents
dated 24.08.2023 and 01.06.2024 have been cited, wherein the
plaintiff and his relatives allegedly trespassed into the shop,
attempted to damage goods, and extended threats of
dispossession, leading to lodging of complaints before the
police authorities. It is contended that the plaintiff has no legal
right to use the shop premises as a passage and that the acts
complained of create a serious apprehension of forcible
dispossession. On these averments, Defendant No. 1 asserts
existence of a prima facie case, balance of convenience in his
favour, and likelihood of irreparable injury, warranting grant of
temporary injunction.
7. Per contra, the plaintiff filed a reply opposing the application,
denying the assertions of Defendant No. 1 in the application
under Order 39 Rule 1 & 2 read with Section 151 of the CPC. It
is contended that the suit shop is his self-acquired property,
purchased through registered sale deeds from his own income.
It is further pleaded that the adjoining shops were
independently purchased by the parties and are not joint
family properties. According to the plaintiff, although separate
portions were purchased, due to close family relations, no
partition wall was constructed between the shops and
Defendant No. 1 was permitted to use the combined space for
business purposes with consent of the plaintiff and his brother.
8. The plaintiff further asserts that the only access to his
residential house is through the suit shop and the channel
gate, which has been continuously used by him and his family
members for the past 25 years as a matter of right. It is alleged
that Defendant No. 1, with mala fide intention to obstruct such
access and to defeat the plaintiff's rights, has filed the present
application for injunction.
9. After appreciating the evidence available on record, the
learned trial Court by order impugned dated 09.02.2026
dismissed the application under Order 39 Rules 1 & 2 of CPC
holding that Defendant No. 1 failed to establish a prima facie
case, particularly due to lack of proper identification of the suit
property in his counterclaim, and further found that the
balance of convenience lies in favour of the plaintiff, as
restraining his access would cause greater hardship, while no
irreparable injury would be caused to Defendant No. 1;
accordingly, the application for temporary injunction under
Order 39 Rules 1 and 2 CPC was rejected.
10. Learned counsel for the appellant submits that the impugned
order is vitiated by material irregularity, illegality and
perversity, as the Trial Court failed to exercise its jurisdiction in
a proper and lawful manner while rejecting the application for
temporary injunction. It is contended that the trial court
misread the facts and misapplied the settled principles
governing grant of injunction, ignoring that the appellant has a
prima facie case, and that the balance of convenience and
irreparable loss lie in his favour. It is further argued that the
plaintiff has an alternative access through a lane and cannot
claim a right of passage through the appellant's shop, and
continuous interference by the plaintiff and his family
members is causing serious obstruction in the appellant's
business, leading to financial and irreparable loss. The trial
Court also failed to consider the complaints made by the
appellant before the police authorities regarding such
interference. Hence, it is prayed that the impugned order be
set aside and appropriate interim protection be granted in
favour of the appellant.
11. This Court has heard learned counsel for the appellant and
carefully perused the record of the case. On due consideration,
it is apparent that the Trial Court has properly appreciated the
pleadings and documents while deciding the application under
Order 39 Rules 1 and 2 CPC. The Trial Court has rightly held
that Defendant No. 1 failed to establish a prima facie case,
particularly in view of the absence of clear and specific
description of the suit property in the counterclaim, which
creates uncertainty regarding the exact property for which
injunction has been sought. In contrast, the plaintiff has
produced a registered sale deed, which prima facie supports
his claim over the suit property.
12. It is also borne out from the record that the plaintiff has been
using the passage through the suit shop to access his
residential portion situated at the rear side for a considerable
period of 25 years, and this aspect is not effectively disputed at
this stage. In such circumstances, the finding of the Trial Court
that the balance of convenience lies in favour of the plaintiff is
well-founded, as any restraint on such access would cause
greater hardship and inconvenience to him.
13. So far as irreparable injury is concerned, the Trial Court has
rightly observed that refusal of temporary injunction would not
result in such loss to the appellant which cannot be
compensated, whereas obstruction of the plaintiff's access to
his residence would result in serious prejudice. The findings
recorded by the Trial Court are based on sound judicial
principles governing grant of temporary injunction and do not
suffer from any illegality, perversity or material irregularity.
14. In a Miscellaneous Appeal, interference is warranted only when
the discretion exercised by the Trial Court is arbitrary,
capricious or contrary to settled principles of law. In the
present case, no such infirmity is made out. The appellant has
failed to demonstrate any error in the exercise of discretion by
the Trial Court.
15. In view of the above, no illegality or perversity is found in the
impugned order dated 09.02.2026 passed by the learned
Trial Court. The order of the learned Trial Court is hereby
affirmed.
16. Consequently, the present appeal is dismissed in the admission
stage itself.
17. It is made clear that this Court has not expressed any opinion
on the merits of the case and the trial Court is directed to
proceed with the trial in accordance with law and on its own
merits.
Sd/-
(Bibhu Datta Guru)
Judge
shoaib/Gowri
