Shyam Sundar vs Medni Kumar Adult
2021 Latest Caselaw 6962 MP

                                                                          1                               MP-1573-2021
                                               The High Court Of Madhya Pradesh
                                                          MP-1573-2021
                                                        (SHYAM SUNDAR Vs MEDNI KUMAR ADULT AND OTHERS)


                                       Jabalpur, Dated : 28-10-2021

Shri Avinash Zargar, learned counsel for the petitioner.

Shri N.N. Mishra, learned counsel for the Caveator. This petition has been filed by the plaintiff being aggrieved of order dated 05.03.2021 passed in M.C.A. No.05/2020 wherein appeal of the defendants filed against order dated 19.12.2019 passed by learned Civil

Judge, Class-I, Teothar, District Rewa in RCSA No.62/2015 whereby, an application under Order 39 Rule 1 and 2 of CPC filed by the plaintiff was accepted and direction was issued in favour of the defendants to not to transfer the land in question in name of any third party has been set aside by the First Appellate Court on the ground that the impugned order has been passed on incorrect facts. It is mentioned in the impugned order dated 05.03.2021 that once partition had taken place between the parties on 02.12.2014 and mutation was carried out on the basis of partition deed dated 02.12.2014, then parties were put into possession to their respective shares,

there was no occasion for passing the order restraining the defendants from alienating their shares of property which they have received after partition.

At this stage, Shri Avinash Zargar, learned counsel for the petitioner submits that the learned Additional Sessions Judge has allowed appeal filed by the defendants sole only on the ground that second application for injunction is not maintainable when earlier his application for temporary injunction was dismissed by the learned Civil Judge, Class-II on 19.11.2015. Thereafter, in MCA. No.18/2015 when the order of the learned Civil Judge, Class-II was put to challenge then that appeal too was dismissed vide order dated 12.07.2016. It is submitted that this finding that second application is not maintainable is contrary to the judgment of Rajasthan High Court in the case of Saraswati Devi (Smt) Vs. Maharao Brajraj Singh and Anr, Signature Not Verified SAN reported in RLW 2007(3), 2676. Reading from para 15 and 16 of the said Digitally signed by MOHD TABISH KHAN Date: 2021.10.29 18:26:04 IST 2 MP-1573-2021 judgment it is submitted that there is no statutory bar against filing of a second temporary injunction application provided new facts have emerged which will warrant issuance of temporary injunction in favour of the plaintiff.

Shri N.N. Mishra in his turn submits that the finding of second application being not maintainable may be treated as a superfluous finding

because prior to that in para 18 and 19 of the impugned order learned Additional District Judge, Teonthar, has dealt with the issue extensively and has recorded a finding of fact that plaintiff who is petitioner before this Court even disputed the partition deed of 2014 on the ground that earlier oral partition had taken place in the year 2001 and this narration in the impugned order reveals that petitioner is a habitual litigant and is trying to scuttle the proceedings by hook or crook to create nuisance for the defendants. It is submitted that the First Appellate Court has categorically recorded a finding that if petitioner was raising a plea of oral partition in the year 2001 then he was not required to sign the partition deed which was executed in writing in the year 2014. It is also submitted that another fact has come on record that even mutation in terms of the said partition deed has been completed.

After hearing learned counsel for the parties and going through the record, it is evident that there is a finding recorded by learned Civil Judge, Class-II in the pending civil suit as is evident from order dated 19.11.2015 that prima facie no case was found in favour of the present petitioner and in para 10 of the order it has been held that prima facie it is not evident that portion shown in red color in Annexure-1 is the land which was received by the plaintiff in partition. Thus, once a finding has been recorded by the trial Court which has been affirmed by the learned Additional District Judge in MCA No.18/2015 vide order dated 12.07.2016 then merely alienation of that portion of land which was prima facie found to be not received by the plaintiff in partition will not give rise to afresh cause of action as has been discussed in para 15 of the judgment rendered by Rajasthan High Court in

Signature Not Verified SAN case of Saraswati Devi(Smt) (supra).

Digitally signed by MOHD TABISH KHAN Date: 2021.10.29 18:26:04 IST 3 MP-1573-2021 Thus, it is evident that when there is no material on record produced by the petitioner to substantiate that he had received the portion marked in red in Annexure-1 to the partition deed then he is not entitled to claim any injunction and if ultimately suit is decreed in favour of the plaintiff then principles of this lis pendens will be applicable. Defendants act of alienating his share of land cannot be a ground to entertain successive applications for injunction unless and until petitioner is able to establish and prove his title over the land marked in red in Annexure-1, therefore, the first Appellate Court did not commit any illegality in setting aside the impugned order dated 19.12.2019.

Order dated 05.03.2021 is not called for any interference except that finding recorded in para 20 that second application is not maintainable needs

to be modified and set aside by holding that second application is maintainable if party moving such application is able to demonstrate changed circumstances which in the present case will be that plaintiff would have been able to demonstrate that subsequently by way of some agreement/compromise/decree the portion marked in red in schedule-1 to the partition deed has been bequeathed on by him.

Petition fails and is dismissed.

(VIVEK AGARWAL) JUDGE

Tabish

Signature Not Verified SAN

Digitally signed by MOHD TABISH KHAN Date: 2021.10.29 18:26:04 IST