Dr.Pankaj Kapoor vs Braj Mohan Kapoor
2021 Latest Caselaw 8206 MP

                                          1
                HIGH COURT OF MADHYA PRADESH,
                              BENCH AT GWALIOR
                                MP-1670-2021
         (Dr. Pankaj Kapoor Vs. Braj Mohan Kapoor & Ors.)


Gwalior, Dated : 04/12/2021

       Shri J.P. Mishra, learned counsel for the petitioner.

       Shri Abhishek Singh Bhadauriya, learned counsel for respondents

No.1 and 2.

Shri G.P. Chaurasiya, learned counsel for respondent No.3.

The petitioner/plaintiff filed a civil suit against the

respondents/defendants who happen to be father and brother of the petitioner

seeking partition of agricultural land and permanent injunction regarding the

disputed residential plot. He filed an application under Order 39 Rule 1 and

2 of the Code of Civil Procedure (hereinafter referred to as ("CPC") for

temporary injunction which was disposed of vide order dated 20/10/2020 by

the Court of Second Civil Judge, Class-II, Vidisha (M.P.), whereby the

prayer for temporary injunction for restraining the respondents from raising

construction on the disputed land was declined, however,

respondents/defendants were restrained to alienate the disputed property till

disposal of the suit.

The defendants/respondent No.1 filed an appeal against the order of

trial Court which came to be allowed vide order dated 07/04/2021. The order

of the trial Court was set-aside. The application for temporary injunction

filed by the petitioner/plaintiff was dismissed. Being aggrieved of the said

order of Appellate Court, this petition has been filed by the

petitioner/plaintiff.

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-1670-2021 (Dr. Pankaj Kapoor Vs. Braj Mohan Kapoor & Ors.)

Heard learned counsel of both the parties and perused the record

available on record.

Learned counsel for the petitioner/plaintiff submits that the disputed

residential house (since demolished) is the joint family property. In oral

family settlement, the petitioner/plaintiff obtained 1/3 share in the same. The

defendants/respondents are adamant to oust the plaintiff from the disputed

plot. The petitioner has got prima facie case in his favour. If the disputed

plot is alienated or third party right are created over it, the plaintiff will be

deprived of his legal rights. The balance of convenience and irreparable loss

is in his favour still the Appellate Court has reversed the decision of the trial

Court. The impugned order is quite illegal which deserves to be set- aside

and at least till disposal of the suit, defendants should be restrained from

alienating the disputed property.

Learned counsel for the respondents have vehemently opposed the

petition with the submissions that the disputed property is not a joint family

property. It is self acquired property of defendant No.1 which he received in

partition before the birth of the plaintiff. The petitioner/plaintiff is son of the

defendant No.1 who has no right over the property in lifetime of the father.

His pleadings are self contradictory inasmuch as on one hand he pleads for

earlier family settlement and on the other hand he is seeking partition in

agricultural land. Without the suit for declaration and possession, he is not

entitled for any injunction. The petition sans merits and accordingly liable to

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-1670-2021 (Dr. Pankaj Kapoor Vs. Braj Mohan Kapoor & Ors.)

be dismissed. He has placed reliance upon the judgments of the Coordinate

Bench of this Court at Indore in the case of Dilip Vs. Mohanlal & Ors.

passed in Second Appeal No.322/2016 on 01/08/2018 and in the case of

Smt. Chandrakanta & Anr. Vs. Ashok Kumar & Ors. [2002 (3) MPLJ

576].

Heard, Considered.

The controversy between the parties shall be finally decided at the

time of disposal of civil suit, however, in order to decide the present petition,

suffice it to say that admittedly the petitioner/plaintiff is the son of

respondent/defendant No.1 and he himself has come out with the case that in

oral family settlement, he received 1/3 share in the disputed plot/house

which has been demolished by defendants and they are raising construction

over it meaning thereby the petition admits the possession of the defendants

over the disputed property. Further the defendants have denied any sort of

right of the plaintiff over the disputed plot. In such a situation, in view of the

legal position as expounded by the Hon'ble Supreme Court in the case of

Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By LRs. & Ors.[(2008) 4

SCC 594], the petitioner was required to bring the suit for declaration,

possession and permanent injunction. But instead, he has simply sought

permanent injunction with regard to the disputed plot. In the absence of

relief of declaration and possession, the plaintiff is not entitled for

permanent/temporary injunction against the respondents/defendants.

HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR MP-1670-2021 (Dr. Pankaj Kapoor Vs. Braj Mohan Kapoor & Ors.)

Otherwise also, undisputedly the disputed property is not self acquired

property of the plaintiff at the most it can be said to be an ancestral or joint

family property but in view of the judgments cited by the respondents, the

petitioner son cannot claim the property in lifetime of his father

(Respondent/defendant No.1) particularly when he has not sought any

partition in the disputed property.

Though the petitioner could not establish prima facie case in this

favour, however, if the property is alienated by the defendant No.1, his rights

are well protected under Section 52 of the Transfer of Property Act, 1882.

Thus, the petitioner/plaintiff has failed to establish essential

ingredients of temporary injunction in his favour. Learned Appellate Court

has not committed any illegality and irregularity in passing the impugned

order.

Resultantly, the present petition is hereby dismissed.

(SATISH KUMAR SHARMA) JUDGE

rahul Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676d0cde4dee473 fe77953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D487, serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD4AB9D159B5 5575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2021.12.06 20:06:37 +05'30'