Madhya Pradesh High Court
Gullu Kha vs Sardar Kha on 16 June, 2021
Author: Vivek Rusia
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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
(SINGLE BENCH: HON'BLE Mr. JUSTICE VIVEK RUSIA)
Miscellaneous Petition No.1252/2021
(Gullu Kha Vs. Sardar Kha)
Date: 16.06.2021:
Shri Vivek Patwa, learned counsel for the Petitioner.
Heard on the question of admission through V.C.
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The petitioner/plaintiff has filed the present petition under
Article 227 of the Constitution of India being aggrieved by the order
dated 22.02.2021 passed by 1st Additional District Judge, Dewas,
whereby the temporary injunction granted by II Civil Judge, Class-
2, Dewas vide dated 23.02.2016 has been set aside.
2. Facts of the case in short are as under: -
The petitioner and one Babu Kha filed civil suit No.18-
A/2002 before civil Court in respect of the land bearing survey
no.644 for the relief of declaration and possession based on long
possession and agreement to sale. Vide judgment dated 10.02.2006
the aforesaid suit was dismissed as plaintiffs have failed to prove
their possession as well as execution of agreement to sale dated
28.12.1980. The plaintiffs preferred a first appeal as well as second
appeal but remained unsuccessful.
In the year 2007-2008 the petitioner filed an application
before Nayab Tehsildar for recording his name in column no.12 of
revenue record on the basis of possession on survey no.644/1,
644/2, 644/3 and 644/4. Vide order dated 08.04.2008 learned Nayab
Tehsildar has held that the petitioner is in possession of survey
no.644 area 0.238 hectare with joint possession and directed to
record his name.
Vide order 24.03.2014 this petitioner again filed an
application before the Naib Tehsildar for recording his name in
column no.12 of survey no.644/3 area 0.84 hectare which was
allowed by the Tehsildar and accordingly the name of the applicant
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was recorded. Thereafter, on the basis of the aforesaid orders the
petitioner has filed a fresh civil suit for declaration of title and
permanent injunction in respect of front portion of the agricultural
land bearing survey no.644 area 1.055 hectare and declaration that
sale deed 02.03.2012 executed in defendants nos.4 to 6 of survey
no.644/3 area 0.84 hectare is not binding on him. Along with the
suit the plaintiff has filed an application for temporary injunction.
The defendants filed reply to the application raising serious
objections regarding the maintainability of the subsequent civil suit.
Vide order dated 23.02.3016 the learned civil Court has granted
temporary injunction in the favour of the plaintiff and restrained
respondents no.4 to 6 to interfere into peaceful possession of
plaintiff over survey no.644/3 area 0.84 hectare gram Palan Nagar.
Being aggrieved by the aforesaid order respondents no. 1,2
and 3 (defendants no.4, 5 and 6) have preferred a miscellaneous
appeal. Vide order 22.02.2021 the Additional District Judge, Dewas
has allowed the appeal and set aside the order dated 23.02.2016
hence the present petition before this Court.
3. I have heard Shri Vivek Patwa, learned counsel for the
petitioner and perused the record.
4. Shri Patwa submits that the first appellate Court has wrongly
reversed the well-reasoned order passed by the Civil Judge, Class-2,
Dewas. The petitioner's possession is not in dispute in view of the
order passed by the Naib Tehsildar and Tehsildar dated 08.04.2008
and 23.04.2014 respectively. The petitioner is in possession of the
suit land since last 100 years and during pendency of the suit he has
rightly been granted temporary injunction for protection of his
possession.
5. It is not in dispute that the petitioner is not an owner of the
suit land. He had filed civil suit no.18/A-2002 seeking declaration of
title and permanent injunction. The said suit was dismissed in the
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year 2006 and thereafter he preferred second appeal. After dismissal
of the second appeal, he got managed to obtain an order from Naib
Tehsildar and Tehsildar in respect of entry of his name in column
no.12 of the revenue record . Based on the such entries he has filed a
fresh suit seeking declaration of title and permanent injunction in
respect of the same land. Survey no.644/3 was part of survey
no.644/4 for which the plaintiff/petitioner has already lost the battle.
The second suit is nothing but a misuse of process law. The present
suit is pending since the year 2014 till today even issues have not
been framed. In six years the application for temporary injunction
was decided by the Court and thereafter, in five years miscellaneous
appeal remained pending before the first appellate Court. It is
nothing but the wastage of valuable time of Court. Having lost the
civil suit again present suit has been filed and which is pending
since last more than ten years. First Appellate Court has not
committed any error while setting aside the order granting
temporary injunction. The plaintiff/petitioner is seeking temporary
injunction against the true owner without there being any title. Even
he is having agreement to sale in his favour which he has failed to
prove the same in the first round of litigation. He did not file any
suit for specific perform therefore only by payment of fixed court
fees for the relief of declaration he wants to enjoy the possession
over the property and keep the matter pending before the civil court
for years together. Accordingly, this miscellaneous petition is
dismissed.
( VIVEK RUSIA )
JUDGE
Ajit
AJIT Digitally signed by AJIT KAMALASANAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
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NAN
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KAMALASANAN
Date: 2021.06.21 10:27:23 +05'30'
