Prahlad Singh vs Shivshankar Singh
2021 Latest Caselaw 1083 MP

                                                                                      FA No.715/2019




                      HIGH COURT OF MADHYA PRADESH
                        PRINCIPAL SEAT AT JABALPUR

                                 First Appeal No.715/2019

Prahlad and others.......................................................... Appellants

                                        Versus

Shivshankar Singh and others.......................................     Respondents

        For the appellants:             Mr.Ashok Kumar Jain, Advocate

        For the respondent No.7: Mr.Girish Kumar Shrivastava, Advocate

        For the respondent No.8: Mr.R.L.Shukla, Advocate
           ==========================================
                                  ORDER

[25/03/2021]

Heard on I.A. No.5034/2019, an application under Order 39 Rules

1 and 2. Perused the record.

The appellants/plaintiffs have filed the instant appeal against the

impugned judgment and decree dated 31.01.2019 passed by the learned

trial Court in Civil Suit No.16-A/2014 whereby the suit filed by the

plaintiffs seeking declaration, possession and permanent injunction in

respect of suit lands bearing Khasra Nos.521, 522, 524, 545 & 554

admeasuring 4.89 acres and Khasra Nos.12, 13, 14, 15, 27, 28, 29, 30, 31,

59 & 147 total admeasuring 37.56 acres as also for setting aside the

order of Naib Tahsildar dated 04.11.1996, has been dismissed in entirety.

2. This Court vide order dated 07.8.2019 while issuing notices to the

respondents directed the respondents not to change the nature of the suit

property by making construction and not to create any third party interest

over the suit property.

FA No.715/2019

3. During pendency of instant appeal, the appellants filed

I.A.No.10525/2019, an application for modification of the order dated

07.8.2019 stating that on account of inadvertence and typographical error

the aspect with regard to admission of instant first appeal has not come in

the order.

4. A perusal of order-sheet dated 31.7.2020 reflects that learned

counsel for the appellants submitted that during pendency of instant

appeal, the property has been sold and respondents are continuing to

make construction over the suit property in violation of the interim order

of this Court. Hence, the appellants have also filed a contempt petition

and brought additional documents in that regard vide I.A.No.5966/2020

on 10.9.2020.

5. Further, a perusal of order-sheet dated 14.9.2020 shows that the

applications filed by the respondent No.7 and respondent No.8 being

Interlocutory Application No.14787/2019 & 3951/2020 for vacating

interim order dated 07.8.2019 have already been dismissed vide order

and they were directed to file reply to I.A.No.5034/2019, an application

under Order 39 Rules 1 & 2 of CPC filed by the appellants. In

compliance of aforesaid order only the respondent No.8 filed reply on

06.11.2020 vide Document No.5706/2020.

6. Learned counsel for the appellants submitted that respondents have

alienated the properties in dispute and are raising construction of

Duplexes over the same and are changing the identity of property and

they are further creating third party interest over the same. The appellants

FA No.715/2019

have filed photographs to this effect as also the registered sale deeds

executed by Aarti Jaiswal in favour of Hiralal Prajapati. It is further

submitted that if the respondent are not restrained from further alienating

the property in dispute and from changing the identity of the same or

creating third party interest, the same would lead to mulitiplicity of

litigation. Learned counsel further submitted that prima facie case lies in

favour of the appellants and balance of convenience lies in restraining the

respondents. It is further submitted if the respondents are not restrained,

the appellants would suffer irreparable loss.

7. The respondent No.8 submitted reply to application under Order 39

Rules 1 & 2 CPC stating that appellants are not in possession of the suit

property and the same was sold much prior to filing of suit and such

purchasers were put in possession of the property and they have not been

impleaded as party. It is also submitted that trial Court has not found the

appellants in possession of the suit property, therefore, there is no prima

facie case and balance of convenience does not lie in favour of appellants.

8. As stated by respondent No.8, the property is not in possession of the appellant prior to filing of the suit. At present, the same is in possession of the purchasers. The construction has already been raised on the suit land. The appellants have claimed their title over the suit property on the basis of the Will which is not found to be proved according to law by the trial Court. Although the findings of the trial Court are under challenge but considering the over all facts of the case, the prime consideration is that whether the alleged Will has been executed in the year 1982 in accordance with law. Thereafter the appellants kept golden silence and, as alleged, have not chosen to

FA No.715/2019

proceed for mutation and possession of the same. Thus, prima facie case is not in favour of the appellants because they are not in possession of the suit property. It was already sold to other persons. The purchasers constructed a house over the suit land by spending a huge amount. Thus, the balance of convenience is also not in favour of the appellants. They are not going to suffer irreparable loss if interim order is not granted because if the appellants succeed in the appeal they would be entitled to removal of the construction at the costs of the concerned respondents.

9. For the aforesaid reasons, this Court is not inclined to grant temporary injunction in favour of the appellants in respect of the construction that has already been raised over the suit lands. Accordingly, in the interest of justice, I.A. No.5034/2019 is partly allowed with the direction that till disposal of this appeal, no further third party interest shall be created on the entire suit properties.

List the case for consideration of pending I.A.s after two weeks.

(Smt. Anjuli Palo) Judge RM/ks

Digitally signed by KOUSHLENDRA SHARAN SHUKLA Date: 2021.03.26 05:24:47

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