Ramjanki Mandir Place Khajuri Tal ... vs Sharda Prasad Tiwari
2021 Latest Caselaw 2208 MP

                                                                            MP No.1436/2021




                   HIGH COURT OF MADHYA PRADESH
                     PRINCIPAL SEAT AT JABALPUR

                                 M.P. No.1436/2021

Ramjanki Mandir ..............................................................Petitioner
                                    Versus
Sharda Prasad Tiwari ...................................................... Respondent

       For the petitioner:                 Mr. Rahul Rawat, Advocate

       For the respondent:                 Mr. Vinod Kumar Dubey, Advocate

           ==========================================
                            ORDER

[9/06/2021]

This petition has been filed under Article 227 of the

Constitution of India being aggrieved by the order dated 22.03.2021

passed by the lower appellate Court (2 nd Additional District Judge,

Amarpatan) in MCA No.13/2020 whereby the appeal preferred by the

respondent under Order 43 Rule 1 of the Code of Civil Procedure

has been allowed and the order dated 06.08.2020 passed by the trial

Court has been set aside. Vide order dated 06.08.2020, the trial Court

allowed the application under Order 39 Rules 1 and 2 read with

Section 151 of the Code of Civil Procedure and had granted stay in

favour of the plaintiff restraining the respondent/defendant from

raising any construction over the disputed land.

2. The petitioner claims that the disputed land situated at

village- Itma, patwari halka number 1018 admeasuring 0.077 hectare

and part area 0.017 hectare belong to it i.e. Ramjanki Mandir since

1963. The land has been recorded in the name of the plaintiff in the

revenue record but without any kind of legal authority, the ::

MP No.1436/2021

respondent is trying to raise construction over the suit land.

Therefore the petitioner/plaintiff filed an application under Order 39

Rules 1 and 2 of the CPC.

3. The respondent/defendant filed reply to the aforesaid

application stating that the disputed land is in possession of the

defendant and he is running a aata chakki (flour mill) for last 40

years. It is further contended that the temple was never situated at

the disputed land. It was contended that in pursuance of the order of

Naib-Tahsildar, Patwari conducted spot inspection in front of

villagers and found the aforesaid facts established.

4. The trial Court held that the name of the plaintiff finds

mention as possession holder in the revenue record from 2011-12 to

2019-20. Although the respondent claims the possession over the suit

property for last forty years yet this fact is subject to evidence. The

trial Court finding the prima facie convenience in favour of the

plaintiff granted stay order and restricted the respondent from raising

any construction over the suit land.

5. The lower appellate Court vide impugned order set aside

the order passed by the trial Court.

6. This petition has been filed on the ground that the lower

appellate Court has not appreciated the fact that the respondent does

not have any document of title but he is an encroacher. The name of

the temple was recorded in the revenue records since 1963 onwards.

Hence, the lower appellate Court has erred in law in setting aside the ::

MP No.1436/2021

well reasoned order of trial Court holding that balance of

convenience is in favour of the plaintiff.

7. On the other hand, learned counsel for the respondent has

opposed the contentions of learned counsel for the petitioner

contending that from patwari report it has already been established

that the respondent is in possession of the suit land. He is running a

flour mill for a period of forty years. Hence, the lower appellate

Court has rightly set aside the order passed by the trial Court.

8. Heard learned counsel for the parties and perused the

record.

9. The trial Court in paragraph 14 held that entries made by

patwari has no presumptive value and referred the provision of

Section 117 of the M.P. Land Revenue Code, 1959. The lower

appellate Court has held that in the Patwari Report dated 10.07.2020

it was found that the respondent/defendant is in possession of the

disputed land for last forty years. The patwari found that on the spot

there is an old dilapidated house which was locked. On unlocking the

house, he found an old flour mill is situated there. This fact also

finds support from Khasra Panchshala of the years 2007-08 to 2020-

21. The defendant had also filed the Revenue Order Sheet dated

04.07.2020, Patwari Report dated 10.07.2020 along with Spot

Panchnama dated 10.07.2020, Khasra Panchshala from the year

1963-64 to 2019-20.

10. With regard to grant of temporary injunction it is settled ::

MP No.1436/2021

in law that the Court has to see the actual possession on the suit

property. The lower appellate Court has relied on the spot inspection

report dated 10.07.2020 submitted before the Tahsildar. In the said

report it is specifically mentioned that in the disputed land, a

dilapidated house is situated in the area 20 x 32 square feet. An old

flour mill is also situated there in non-funcitoning state. From the

aforesaid, the lower appellate Court found possession of the

respondent. Even otherwise it is well settled in law that the

jurisdiction of this Court under Article 227 of the Constitution can

not be exercised to correct all errors of a judgment of a court acting

within its limitation. It can be exercised where the orders is passed in

grave dereliction of duty or in flagrant abuse of fundamental

principles of law and justice. [See:Jai Singh and others vs. M.C.D.

and others (2010) 9 SCC 385 and Shalini Shyam Shetty Vs.

Rajendra Shankar Patil (2010) 8 SCC 329]

11. In the instant case the impugned order dated 22.03.2021

is not passed in violation of fundamental principles of law and

justice warranting interference of this Court under Article 227 of the

Constitution. In view of the preceding analysis, the petition fails

and is hereby dismissed.

(Smt. Anjuli Palo) Judge ks

Digitally signed by KOUSHLENDRA SHARAN SHUKLA Date: 2021.06.15 00:17:36 -07'00'