M/S Ayushi Construction vs Rishi Anand Sonkar
2022 Latest Caselaw 4658 MP

                        1                     MA No.644/2021




    IN THE HIGH COURT OF MADHYA PRADESH AT
                   JABALPUR

                    BEFORE
   HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA

         MISCELLANEOUS APPEAL No. 644/2021


Between :-


   M/S AYUSHI CONSTRUCTION THRO. ITS
   PROPRIETOR SATYENDRA YADAV S/O SHRI
   RAMJEET SINGH YADAV AGE 35 YRS 27
   CHANDAN          COLONY           GANGANAGAR
   JABALPUR (MADHYA PRADESH)
                                                  .....APPELLANT
   (By Shri Pankaj Dubey, Advocate for the appellant)

   AND

   RISHI ANAND SONKAR S/O LATE BRIJLAL
   SONKAR , AGED ABOUT 43 YEARS, HOUSE
1. NO. 83 JAIPRAKASH MALVIYA WARD
   BHARTIPUR (MADHYA PRADESH)

   SHASHI ANAND SONKAR S/O LATE BRIJLAL
   SONKAR , AGED ABOUT 40 YEARS, HOUSE
2. NO. 83 JAIPRAKASH MALVIYA WARD
   BHARTIPUR (MADHYA PRADESH).

   SMT. SUSHMA SONKAR W/O RAJESHWAR
   DAYAL SONKAR , AGED ABOUT 45 YEARS,
3. NAWABAD TAH. AND     DISTT. (UTTAR
   PRADESH)
                    2               MA No.644/2021




   SMT. RAGINI SONKAR W/O RAJU SONKAR ,
   AGED ABOUT 41 YEARS, HOUSE NO. 69
4. NEHRU WARD TAH. BEENA (MADHYA
   PRADESH)

   PRASANN SONKAR S/O LATE BADKU BHAIYA
   @ HIRAMAN SONKAR , AGED ABOUT 54
   YEARS, 262 BHARTIPUR INFRONT OF HOUSE
5.
   NO EX MLA ACHHELAL SONKAR (MADHYA
   PRADESH)

   VINOD KUMAR SONKAR S/O LATE BADKU
   BHAIYA @ HIRAMAN SONKAR , AGED
   ABOUT 70 YEARS, 262 BHARTIPUR INFRONT
6.
   OF HOUSE NO EX MLA ACHHELAL SONKAR
   (MADHYA PRADESH)

   NARESH SONKAR S/O LATE BADKU BHAIYA
   @ HIRAMAN SONKAR , AGED ABOUT 62
7. YEARS, BEHIND CHURCH BHARTIPUR
   (MADHYA PRADESH)

   BASANT SONKAR S/O LATE BADKU BHAIYA
   @ HIRAMAN SONKAR , AGED ABOUT 58
8. YEARS, BEHIND CHURCH BHARTIPUR
   (MADHYA PRADESH)

   SMT. RAMPYARI SONKAR W/O SHREENATH
   SONKAR , AGED ABOUT 60 YEARS, BEHIND
9.
   CHURCH BHARTIPUR (MADHYA PRADESH)

    SMT. LALA @ SAVITRI SONKAR W/O SHRI
    DAS SONKAR , AGED ABOUT 65 YEARS,
10. BEHIND THE HOUSE OF VINOD SONKAR
    BEOHARBAGH (MADHYA PRADESH)

11. SMT.MISSO BAI SONKAR W/O SHRI
   TARACHAND SONKAR , AGED ABOUT 70
                            3                     MA No.644/2021




      YEARS, BEOHARBAGH JABALPUR (MADHYA
      PRADESH)

    SMT. KIRAN SONKAR W/O SHRI MAKHAN
    SONKAR , AGED ABOUT 52 YEARS, 464/1 DR.
12. SARWAPALLI   RADHAKRISHNAN       WARD
    BHAWARI CHOWK (MADHYA PRADESH)

    SMT. POONAM DUBEY W/O BHOLA PRASAD
    DUBEY   MEDICAL   GARHA   JABALPUR
13.
    (MADHYA PRADESH)

    STATE OF M.P. THR. COLLECTOR DISTT.
14. JABALPUR (MADHYA PRADESH)

      NAIB TAHSILDAR TAH. JABALPUR DISTT.
15.
      JABALPUR (MADHYA PRADESH)
                                                   .....RESPONDENTS
      (By Shri Sharad Gupta, Advocate for respondents no. 1 to 4.
      Shri Vishal Kumar Namdeo, Advocate for respondent no.5.
      Shri Mohd. Ali, Advocate for respondent no. 13.
      Ms. C. K. Pal, PL for respondents no. 14 & 15 / State. )
 Whether approved for reporting :- (Yes/No).

                             ORDER

(01-04-2022)

With the consent of learned counsel for the parties, heard

finally.

Applications (IA No.2726/2022 & IA No.3028/2022) filed

for taking additional documents on records are allowed and the

documents are taken on record.

This miscellaneous appeal has been filed by the appellant under Order 43 Rule 1 (r) of the Code of Civil Procedure being aggrieved by the order dated 21.12.2020 passed by 16 th Additional District Judge, Jabalpur in RCS No. A/459/2020, whereby an application under Order 39 Rule 1 and 2 of the CPC has been allowed in favour of the plaintiffs and against the defendants no.1, 2, 9 and 10 by issuing temporary injunction restraining them from alienating the suit land and also from changing nature of the same till final disposal of the civil suit.

2. The facts of the case in compendium are that the plaintiffs who are respondents no. 1 to 4 in the present appeal have filed a civil suit bearing no. RCS No.A/459/2020 before the trial Court seeking a decree of partition, declaration, separate possession and permanent injunction against the defendants including the appellant in the present appeal. It has been stated in the civil suit that late Shri Heeraman Sonkar @ Badku Bhaiya was the recorded owner and landlord of the land bearing khasra no. 81 area 0.809 hectare, khasra no. 84/2 area 0.105 hectare and khasra no. 203 area 0.113 hectare are situated at mauza Sagda N. B. No. 421, P. H. No.7 (28/32) Tahsil and District Jabalpur. His name was recorded as owner in the land records of the said lands. Similarly, Shri Hiraman Sonkar @ Badku Bhaiya was the owner of the plot no.75/3, area 750 Sq. Ft. are situated at Khasra no. 5, N. B. No.67, P. H. Nio.29 village Jamnera (Vyoharbagh), District Jabalpur and

his name is still recorded in the revenue record of the same. The plaintiffs are the sons and daughters of late Smt. Meera Bai Sonkar D/o. Late Badku Bhaiya @ Heeraman Sonkar. Respondents / Defendants no. 5 to 12 are the sons and daughters of late Badku Bhaiya @ Heeraman Sonkar who died on 4.7.2006 and Smt. Indrani Bai W/o. Late Shri Heeraman Sonkar @ Badku Bhaiya had expired on 16.7.2018 and thus, the plaintiffs and respondents / defendants no. 5 to 12 in the instant appeal are the Class-I legal heirs of late Shri Heeraman Sonkar @ Badku Bhaiya. The plaintiffs' mother Smt. Meera Sonkar had expired on 7.12.2012 and the plaintiffs' father Shri Brijlal Sonkar had expired on 13.11.2010. Thus, the plaintiffs are the legal heirs of late Smt. Meera Sonkar W/o. Brijlal Sonkar.

3. It is also pleaded in the suit that late Heeraman Sonkar @ Badku Bhaiya in his life time executed a will in favour of defendant no. 1 i.e. Prashanna Kumar Sonkar on dated 10.5.2006. The respondent / plaintiff no. 1 sold the property to appellant / defendant no. 9 i.e. Khasra no. 81 area 0.809 hectare to the tune of Rs.1,92,20,000/- vide registered sale deed dated 5.12.2019. Thereafter, the appellant / defendant no. 9 registered the case for mutation of Khasra no.81 area 0.809 hectare, landm in his name and the mutation was done in favour of the appellant / defendant no.9 and thereafter, the name was entered in the khasra panchsala as a landlord and an order for diversion was also passed in favour

of the appellant / defendant no. 9. Thereafter, permission was sought from the Town and Country Planning and Municipal Corporation and the same was granted in the name of M/s. Ayushi Construction. In the aforesaid civil suit, the plaintiff / respondents no. 1 to 4 have claimed relief for only 1/9th share of the suit property and for other property of late Heeraman Sonkar @ Badku Bhaiya and daughter (kiran Sonkar) filed a separate civil suit and the same is pending and the plaintiff / respondents no. 1 to 4 are party in the suit and the case is being contested by their counsel but the property is not included in the instant suit. Mother of the plaintiffs / respondents no. 1 to 4 also made kabuliyatnama in favour of the respondents / defendants no. 1 to 4 and the share of Smt. Meera Sonkar was also taken in the lifetime of late Heeraman Sonkar @ Badku Bhaiya but no any claim for the rest of the property of late Heeraman Sonkar @ Badku Bhaiya is left. The respondent / plaintiff no. 1 signed in the kabuliyatnama as a witness. Late Shri Heeraman Sonkar @ Badku Bhaiya executed a registered will on dated 10.5.2006 in favour of Prashanna Kumar Sonkar and his younger brother Hasraj Sonkar and the said will was also signed in front of aforesaid persons before the Notary and according to the will dated 10.5.2006, the land and the house were handed over.

4. The plaintiffs / respondents no. 1 to 4 also filed an application under Order 39 Rule 1 & 2 read with Section 94/151 of

CPC for grant of temporary injunction praying that defendants no. 1, 2, 9 and 10 be restrained from alienating the suit land and suit plot and also from changing nature of the same by issuing the order of temporary injunction during pendency of the suit. The appellant / defendant no. 9 filed reply to the aforesaid application rebutting the contentions mentioned in the application and also claimed that he is a bona fide purchaser and was unaware of any dispute between the plaintiff and other defendants as mentioned in the cause title of civil suit. He has already invested crores of rupees that is the earning of his entire life and now he and his entire family is dependent on the aforesaid project and now he and his entire family is dependent on the aforesaid project.

5. Learned trial court by the impugned order allowed the application under order 39 Rule 1 and 2 of CPC filed by the plaintiffs granting temporary injunction in favour of the plaintiffs / respondents no. 1 to 4 and against the appellant / defendant no. 9.

6. Learned counsel for the appellant has contended that the order granting temporary injunction in favour of the plaintiffs is illegal, arbitrary because the plaintiffs have not a prima face case and balance of convenience is also against them and in fact, it is causing irreparable injury to the appellant M/s. Ayushi Construction. He is a bona fide purchase as he had purchased the land in respect of Khasra no. 81 area 0.809 vide registered sale deed dated 5.12.2019 for a total sale consideration of

Rs.1,92,20,000/- from defendant no. 1 Prasanna Sonkar because his name was mentioned in the Khasra Panchsala of the suit land and also his name was mutated on the basis of the order passed by the competent authority on 10.5.2007 in Revenue Case no.336/A- 6/2005-06 and the name was mutated on the basis of the will dated 10.5.2006 and since then, the appellant / defendant no. 9 is in peaceful possession and name of appellant / defendant no. 9 is mutated and is mentioned in the Khasra Panchsala of the suit land. Therefore, the balance of convenience lies in his favour. According to provisions of Order VII Rule 11 of CPC, a plaint may be rejected if no cause of action has been disclosed and the present suit is liable to be rejected because the plaintiffs have failed to disclose a proper cause of action. The will has been executed on 10.5.2006 and the registered sale deed in favor of the appellant / defendant no. 9 has been executed on 5.12.2019 and the plaintiffs had stipulated the fact that the cause of action for filing the present suit has arisen in the month of June and August, 2020 when the plaintiffs got the information of illegal activities of defendant no. 1 by selling of the part of the suit land and the same is still continued which clearly shows that the suit also suffers from delay, latches and suppression of material facts. The appellant / defendant no. 9 had registration of Colonizer license from Municipal Corporation, Jabalpur which is registered in the name of M/s. Ayushi Construction through its partner Shri Satendra Yadav (defendant

no.9) and he further had a license for development of the colony. He has also got approved layout of the colony sanctioned by the Joint Director Town and Country Planning Department vide letter no. 784 dated 5.6.2020 and also got diverted the land under the provisions of Section 174 passed by the SDO, Jabalpur.

7. The mother of the plaintiffs had also received her share in her lifetime and also executed agreement in this regard and after receiving the share, at the second time they claims the same land and share as a legal heirs of her mother. Further contended that the appellant is a bonafide purchaser and was unaware of any dispute between the plaintiffs and the defendants mentioned in the cause title of the civil suit. Plaintiffs / respondents no. 1 to 4 have not claimed their partition suit in the total property of late Heeraman Sonkar @ Badku Bhaiya. It is clear as crystal that other property of late Heeraman Sonkar @ Badku Bhaiya, the other daughter of late Heeraman Sonkar filed a civil suit before the court below and all the plaintiffs are the party of the same suit and the property was not mentioned in our partition suit. This is clear cut suppression of material fact with knowledge on this ground alone. Further contended that the plaintiffs / respondents no. 1 to 4 claim only 1/ 9th share but the appellant in only the single khasra no. 81 was purchased and developed a colony and the appellant is still ready to reserve 1/ 9th share of the plaintiffs / respondent no. 1. to 4. In support of his contention, he relied upon the catena of judgments in

Premji Ratansey Shah and others vs. Union of India and others (1994) 5 SCC 547 and Naresh Jain and others vs. Rama and others, AIR 2003 Raj 119 and prayer is made to allow the appeal by setting aside the order dated 21.12.2020 passed by 16 th Additional District Judge, Jabalpur in RCS No.A/459/2020.

8. Learned counsel for respondents no. 1 to 4 and learned counsel for respondent no. 13 argued in support of the impugned order inter alia stating that the plaintiffs have prima facie case in their favour. Learned trial court has not committed any illegality and perversity in passing the impugned order. Learned counsel for respondents no. 1 to 4 placed reliance in Kanji vs. Parmanan AIR 1992 MP 208 and Mohd. Mehtab Khan and others vs. Khushunma Ibrahim and others AIR 2013 SC 1099 and prayed that the appeal be dismissed.

9. Heard learned counsel for the parties and perused the impugned order and the documents. It is admitted fact in the case that the disputed land and plot was the self acquired property of late Shri Heeraman Sonkar @ Badku Bhaiya and he had all right for executing the Will according to his own choice. There is no such law that if in the Will it is somewhere mentioned "Badku Bhaiya" and if it is somewhere mentioned "Badku Bhaiya @ Heeraman Sonkar, then the Will is forged unless it is proved before the competent court of law. Further, the letters are almost similar and are written by the same person and there is no ambiguity in this

regard. To fortify the same, there are also attesting witnesses who signed the will. If it is doubted by any of the party then he/she has right to get examined the writing by the handwriting expert but no such step has been taken by either of the party. Late Heeraman Sonkar @ Badku Bhaiya executed a will in his lifetime in favour of Prasann Sonkar on 10.5.2006 and on the basis of the will dated 10.5.2006, the name of Prasann Sonkar was mentioned in the Khasrapanchsala and in the revenue records, due to which, he executed a sale deed in favour of the appellant for a sale consideration of Rs.1,92,20,000/- and the appellant purchased the suit land because the name of Prasann Sonkar / defendant no. 9 was mentioned in the revenue records after following due process of law. Further no such information regarding the pendency of the proceeding in the Revenue court between the parties was given to the appellant.

10. While considering the application for grant of temporary injunction, the Court not only has to examine that :- (I) whether the plaintiffs have a prima face case; (ii) whether balance of convenience is in favour of the plaintiffs and (iii) whether plaintiffs would suffer irreparable injury if temporary injunction is declined, but is also required to carefully analyze the pleadings and documents on record. On perusal of the impugned order, prima facie it appears that the trial court has failed to follow the aforesaid principle and in a cryptic manner has passed the order which is

impugned herein. The court below has also failed to see that the appellant is a bona fide purchaser and purchased the property to the tune of Rs.1,92,20,000/- from defendant no. 9 Prasann Sonkar. He also obtained permission from the Town and Country Planning and Municipal Corporation, Jabalpur and developed a colony in the suit land and invested crores of rupees. Thus, it is evident that prima facie case and balance of convenience is in favour of the appellant.

11. As far as the question of further alienation of the property is concerned, any alienation or sale during the pendency of the suit is protected under Section 52 of the Transfer of Property Act, as the person who derived title from the pendente lite shall be bound by the decision of the Court in pending suit.

12. In ECE Industries Limited vs. S. P. Real Estate Developers Private Limited and another (2009) 12 SCC 773 it has been held that application for injunction over suit property from changing the nature thereof till pending disposal of suit is denial on the part of appellant regarding construction and causing irreparable loss to him.

13. Accordingly, this court on the conspectus of the aforesaid discussion, finds much force on the arguments canvassed by learned counsel for the appellant and keeping in view the law propounded by the Hon'ble Supreme Court in Premji Ratansey Shah (supra); Naresh Jain and others (supra) and ECE Industries Ltd. (supra), I am of the considered opinion that the

plaintiffs failed to establish three essential ingredients pre requisite for grant of temporary injunction namely prima facie case, balance of convenience and irreparable injury. Learned trial Court having prima facie reached to this conclusion was not justified in granting temporary injunction in favour of the plaintiffs.

14. Accordingly, this miscellaneous appeal is allowed and the impugned order dated 21.12.2020 passed by 16th Additional District Judge, Jabalpur in RCS No.A/459/2020 granting temporary injunction in favour of the respondents no. 1 to 4 / plaintiffs is hereby set-aside. Needless to say that the trial Court shall proceed further in the trial without getting influenced by the observations made in this order in accordance with law.

Accordingly, all pending applications are hereby disposed of. No order as to costs.

(ARUN KUMAR SHARMA) JUDGE

JP/-

JITENDRA KUMAR PAROUHA 2022.04.01 16:45:25 +05'30'