Jandel Singh Kamariya vs Bhajan Singh
2021 Latest Caselaw 8953 MP

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            THE HIGH COURT OF MADHYA PRADESH
                           MP-360-2021
           Jandel Singh Kamariya Vs. Bhajan Singh and ors.

Gwalior, Dated : 17-12-2021

      Shri Siddharth Sharma, Counsel for the petitioner.

      Shri Rajeev Shrivastava, Counsel for respondents No. 1 and 3.

None for the respondent No. 2.

Shri Sanjay Kumar Sharma, Counsel for the respondent No.

4/State.

This petition under Article 227 of the Constitution of India has

been filed against the order dated 29.07.2020 passed by 12th

Additional District Judge, Gwalior in Miscellaneous Appeal No.

82/2018 thereby affirming the order dated 16.05.2018 passed by

Third Civil Judge, Class-II, Gwalior in Civil Suit No.848-A/2017, by

which the application filed by the petitioner under Order 39 Rule 1

and 2 of CPC has been rejected.

It is submitted by the counsel for the petitioner that the

petitioner is the son of respondent No. 1. The petitioner has filed a

suit for declaration of title and permanent injunction. The property in

dispute is a co-parcenary property and the petitioner being the son of

respondent No. 1 is having right in the share of the respondent No. 1,

which is being denied to him. The petitioner also filed an application

under Order 39 Rule 1 and 2 of CPC seeking directions against the

respondents/defendants that they may be restrained from creating

THE HIGH COURT OF MADHYA PRADESH MP-360-2021 Jandel Singh Kamariya Vs. Bhajan Singh and ors.

third party right during pendency of the suit.

The application was opposed. The respondents filed their reply.

It was submitted that the land bearing Survey No.832 and 838 is self

acquired property of the respondent No. 1, whereas the land bearing

Survey No. 844, 845 and 848 was the joint property of the respondent

No. 1 and his brothers. As they were in possession of the said land for

a considerable long time and on the basis of their long possession,

the Tahsildar has partitioned the said land amongst the respondent

No. 1 and his three brothers and, therefore, Survey No. 844 , 845 and

848 also can be said to be a self acquired property of the respondent

No. 1.

After considering the pleadings of the parties, the Trial Court

rejected the application filed by the petitioner under Order 39 Rule 1

and 2 of CPC.

Being aggrieved by the order passed by the Trial Court, the

petitioner preferred an appeal which too has been dismissed by order

dated 29.07.2020 passed by 12th Additional District Judge, Gwalior

in Miscellaneous Appeal No. 82/2018.

Challenging the orders passed by the Courts below, it is

submitted by the counsel for the petitioner that it is incorrect to say

that the land in dispute is a self acquired property of the respondent

No. 1. He further submitted that the Courts below have wrongly held

THE HIGH COURT OF MADHYA PRADESH MP-360-2021 Jandel Singh Kamariya Vs. Bhajan Singh and ors.

that the property in dispute is not a co-parcenary property.

In reply, it is submitted by the counsel for the respondent No. 1

that the petitioner is the son of the respondent No. 1 and during life

time of the respondent No. 1, he has no right to claim any share in the

property and to buttress his contentions, counsel for the respondent

No. 1 has relied upon the judgment passed by this Court in the case

of Babulal s/o Jalam Singh and others Vs. Ramkali Bai wd/o

Khushilal and others reported in 2012 (2) MPLJ 713.

Heard the learned counsel for the parties.

So far as the nature of the land is concerned, there are

concurring findings by the Courts below while deciding the

application filed under Order 39 Rule 1 and 2 of CPC. Any finding

given in an application filed under Order 39 Rule 1 and 2 of CPC, is

not binding at the stage of final disposal of the suit and the Trial

Court can always adjudicate the matter independently on the basis of

the evidence which would come on record. Therefore, the finding

given by the Courts below that the property in dispute is a co-

parcenary property is merely interlocutory in nature having no

bearing on the final outcome of the suit. Furthermore, the petitioner

had merely prayed for an injunction order against creation of third

party right. It is not the case of the petitioner that the respondents are

THE HIGH COURT OF MADHYA PRADESH MP-360-2021 Jandel Singh Kamariya Vs. Bhajan Singh and ors.

trying to alienate the property. Even otherwise, Section 52 of the

Transfer of Property Act takes care of the interest of the petitioner.

Under these circumstances, this Court is of the considered

opinion that no jurisdictional error has been committed by the Trial

Court by rejecting the application filed by the petitioner under Order

39 Rule 1 and 2 of CPC.

The petition fails and is hereby dismissed.

(G.S. Ahluwalia) Judge

Abhi ABHISHEK CHATURVEDI 2021.12.17 19:25:48 +05'30'