Ramavatar vs Shivbhajna @ Bhajna
2022 Latest Caselaw 5599 MP

                                                                           1
                                                    IN THE HIGH COURT OF MADHYA PRADESH
                                                                 AT JABALPUR
                                                      BEFORE HON'BLE SMT. JUSTICE NANDITA DUBEY
                                                                   ON THE 19th OF APRIL, 2022

                                                            MISC. PETITION No. 1512 of 2022

                                               Between:-
                                       1.      RAMAVATAR, S/O MAHARAJDEEN DWIVEDI,
                                               AGED ABOUT 61 YEARS, OCCUPATION: FARMER,
                                               R/O HANUKHEDA, TAHSIL GAURIHAR, DISTRICT
                                               CHHATARPUR (M.P.)

                                       2.      GAYA PRASAD, S/O MAHARAJDEEN DWIVEDI,
                                               AGED ABOUT 57 YEARS, OCCUPATION: FARMER,
                                               R/O HANUKHEDA, TAHSIL GAURIHAR, DISTRICT
                                               CHHATARPUR (M.P.)

                                       3.      BABU RAM, S/O MAHARAJDEEN DWIVEDI, AGED
                                               ABOUT 52 YEARS, OCCUPATION: FARMER, R/O
                                               HANUKHEDA, TAHSIL GAURIHAR, DISTRICT
                                               CHHATARPUR (M.P.)

                                                                                                          .....PETITIONER
                                               (BY SHRI SUMANTA KUMAR BHATTACHARYA, ADVOCATE )

                                               AND

                                       1.      SHIVBHAJNA @ BHAJNA, S/O PRAGILAL DWIVEDI,
                                               AGED ABOUT 69 YEARS, R/O HANUKHEDA, TAHSIL
                                               GAURIHAR, DISTRICT CHHATARPUR (M.P.)

                                       2.      THE STATE OF M.P. THROUGH THE COLLECTOR
                                               CHHATARPUR, DISTRICT CHHATARPUR (M.P.)

                                                                                                       .....RESPONDENTS


                                             T h is petition coming on for admission this day, the court passed the
                                       following:
                                                                            ORDER

This miscellaneous petition takes exception to the order dated 16.03.2022 (Annexure P/4) passed by the Additional District Judge Lavkush Nagar, District Chhatarpur (M.P.) in Civil Appeal No.RCA/2/2022, whereby the application of the petitioners-appellants under Order 41 Rule 5 of CPC for stay of execution of the decree has been rejected.

It is seen from the record that the plaintiff-respondent has originally filed a civil suit for declaration, possession and permanent injunction against the present Signature Not Verified SAN

petitioners. The suit was decided in favour of the plaintiff and a decree was Digitally signed by SHARAN JEET KAUR JASSAL Date: 2022.04.21 15:13:47 IST passed restraining the petitioners/defendants from interfering in the peaceful

possession of the plaintiff. It was also declared that the plaintiff-respondent was the owner and in possession of Kharsa No.1147 area 1.639 Hectare. The present petitioners aggrieved by the said judgment and decree filed an appeal along with the application under Order 41 Rule 5 of CPC, stating that he is in possession of the

disputed land and the "chakki" constructed therein, if the execution of the decree dated 08.12.2021 is not stayed, the plaintiff-respondent may dispossess them.

The Appellate Court has rejected the application on the ground that at present the plaintiff has not filed any application for execution of the decree. Further as regards the possession, the Trial Court has recorded a finding that the plaintiff is the owner and in possession of the suit property. The Appellate Court has also observed that the defendant has not produced any document along with the application which may prima facie show what is the situation or status at present.

A perusal of the judgment and decree dated 08.12.2021 makes it evident that the suit was filed for declaration of title, possession and for permanent injunction restraining the petitioners/defendants from interfering in the peaceful possession and enjoyment of disputed property with regard to part of Khasra No.1147, area 1.639 Hectare. The Trial Court relying on the oral evidence of parties and on consideration of Panchnama (Ex.-P/5) which shows the possession of plaintiff, Khasra entries Ex.-P/7, Ex.-P/8, Namantaran Panji Ex.P/16, Khasra Ex.P/17, Jamabandi Ex.-P/18, Rajinama Ex.-P/15, order of Revenue Board Ex.-P/14, recorded a finding that plaintiff was in possession of Kahsra No.1147 on the basis of partition. Further petitioners/defendants in para 12 of his cross-examination has also admitted that Kahsra No.1147 is recorded in the name of plaintiff-Shiv Bhjan @ Bhajana.

Since there is a clear finding that the petitioners/defendants were not in possession of the suit property, the Appellate Court has not committed any illegality in rejecting the application of the petitioners-defendants.

There is no merit in the petition and is accordingly dismissed. Signature Not Verified SAN

Digitally signed by SHARAN JEET KAUR JASSAL Date: 2022.04.21 15:13:47 IST

(NANDITA DUBEY)

JUDGE sjk

Signature Not Verified SAN

Digitally signed by SHARAN JEET KAUR JASSAL Date: 2022.04.21 15:13:47 IST