Madhya Pradesh High Court
Rajkumar Tripathi vs Motilal Tripathi on 16 August, 2022
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 16th OF AUGUST, 2022
MISC. PETITION No. 3312 of 2022
Between:-
1. RAJKUMAR TRIPATHI S/O LATE SHRI KAUSHAL
PRASAD TRIPATHI, AGED ABOUT 64 YEARS,
OCCUPATION: AGRICULTURIST R/O VILLAGE
DAGDEEHA, TEHSIL RAGHURAJNAGAR,
DISTRICT SATNA M.P. (MADHYA PRADESH)
2. RAMPRAKASH TIRPATHI S/O LATE SHRI
KAUSHAL PRASAD TRIPATHI, AGED ABOUT 60
YE A R S , R/O VILLAGE DAGDEEHA TEHSIL
RAGHURAJNAGAR DISTRICT SATNA (MADHYA
PRADESH)
3. TEERATH PRASAD TRIPATHI S/O LATE SHRI
KAUSHAL PRASAD TRIPATHI, AGED ABOUT 58
Y E A R S , OCCUPATION: AGRICULTURE R/O
VILLAGE DAGDEEBA TEHSIL
RAGHURAJNAGAR DISTRICT SATNA (MADHYA
PRADESH)
4. SHIVKUMAR TRIPATHI S/O LATE SHRI
KAUSHAL PRASAD TRIPATHI, AGED ABOUT 56
Y E A R S , OCCUPATION: AGRICULTURE R/O
VILLAGE DAGDEEHA TEHSIL
RAGHURAJNAGAR DISTRICT SATNA (MADHYA
PRADESH)
5. ANIL KUMAR TRIPATHI S/O SHRI KAUSHAL
PRASAD TRIPATHI, AGED ABOUT 52 YEARS, R/O
VILLAGE DAGDEEHA TEHSIL
RAGHURAJNAGAR DISTRICT SATNA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SIDDHARTH GULATI - ADVOCATE)
AND
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SAN
MOTILAL TRIPATHI S/O LATE SHRI KAUSHAL
Digitally signed by HEMANT SARAF
Date: 2022.08.17 17:46:25 IST PRASAD TRIPATHI, AGED ABOUT 64 YEARS,
OCCUPATION: NIL R/O DAGDEEHA, TEHSIL
2
RAGHURAJNAGAR, DISTRICT SATNA M.P.
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIKAS MISHRA - ADVOCATE)
This petition coming on for admission and interim relief on this day, the
court passed the following:
ORDER
In this petition under Article 227 of the Constitution of India, the
petitioner has assailed the legality, validity and propriety of the order dated
1.7.2022 passed by II District Judge, Satna, in Appeal No.72/2021 whereby the
learned appellate court in exercise of power under Order 43 Rule 1(r) read with
section 151 C.P.C. has affirmed the order dated 6.12.2021 passed by III Civil
Judge Junior Division Satna in R.C.S.A.No.130/2021, by which the application
filed by the respondent/plaintiff under Order 39 Rule 1 and 2 C.P.C. has been
allowed.
Necessary facts for adjudication of this case are that the
plaintiff/respondent has filed a suit seeking the relief of permanent injunction
with respect to the suit property mentioned in para 2 of the plaint namely Khasra
No.393/2, 394/2, 395/2 and 396/2 total area ad measuring 0.580 hectares
situated in Mauja Dagdiha, Tahsil Raghurajnagar, District Satna. The allegation
of the plaintiff is that the said property has been produced by him from his own
source of income by registered sale-deed dated 16.4.1982. It is further alleged
that on the date of sale, the plaintiff is in the exclusive possession of the
property and has also pledged a portion of that property and created a
mortgage in favour of the Allahabad Bank, Branch Jaitwara. It is alleged that the
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defendants/petitioners are trying to interfere in his peaceful possession and also
made an attempt to get the partition of the said property done in their favour
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Date: 2022.08.17 17:46:25 IST
behind the back of the plaintiff.
On the basis of aforesaid allegation the suit has been filed by the plaintiff
claiming the protection from dispossession by way of decree for permanent
injunction. The plaintiff had also filed an application under Order 39 Rule 1 and
2 C.P.C. seeking temporary injunction which has been allowed vide order dated
6.12.2021. Being aggrieved the petitioner has filed appeal before the appellate
court, which was dismissed vide order dated 1.7.2022 affirming the order dated
6.12.2021. Hence, this petition.
Learned counsel for the petitioners/defendants submitted that on the
basis of family partition itself, the defendants have moved the revenue
authorities under section 178, 109 and 110 of the M.P.L.R.C. for recording the
separate names of the parties in the property. The said application was
dismissed by the revenue authorities solely on the ground that there appears to
be a title dispute between the parties on the suit property and the name of the
Bank is recorded as mortgagee, therefore, the said proceedings have been
closed.
Learned counsel for the petitioners further contended that application
under section 250 of the M.P.L.R.C. with respect to the suit property was filed
by the present defendants. The provisions of section 250 of the M.P.L.R.C.
contemplates restoration of possession of dispossessed Bhumiswami. Initially
there was an interim order passed by the revenue authorities restraining the
defendants, however, the same has been modified and while disposing of the
proceedings under section 250 of the M.P.L.R.C. directions have been issued
to maintain the status-quo. Since the plaintiff was not in possession, therefore,
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he has moved an application under section 250 of the M.P.L.R.C. Therefore,
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Date: 2022.08.17 17:46:25 IST
the trial court could not have allowed the application under Order 39 Rule 1 and
2 C.P.C. Learned counsel for the petitioner has placed reliance on the judgment
of this Court in the case of Abdul Latif Vs. Abdul Rajjak and another,
reported in 1989 ILR 160, to contend that injunction against co-tenant as a rule
cannot be granted even if he is out of possession.
On the other hand, learned counsel for the respondents/Caveator has
opposed the prayer vehemently and contended that he is the owner and title
holder of the land in question. The property is the self-acquired property and
he is the registered owner of the same. He has purchased the same by
registered sale-deed dated 16.4.1982 and thereafter his name has been mutated
in the revenue records and is continuing in possession. On 20.2.2021, the
petitioners/defendants tried to dispossess the plaintiff/respondents and also
tried to destroy the crops sown by him. Therefore, the suit seeking relief of
permanent injunction has been filed by the plaintiff/respondent. The basic three
ingredients are also in favour of the respondent/plaintiff. The trial court has also
passed the reasoned order while allowing the application, therefore, no
interference is called for and the petition is liable to be dismissed.
Heard learned counsel for the parties.
The learned trial court as well as the appellate court have prima facie
came to the conclusion that the respondent/plaintiff is in possession of the suit
property. The learned trial court after considering the basic elements regarding
existence of prima facie case, balance of convenience and irreparable injury has
allowed the injunction.
While exercising discretion for grant of interim injunction the following
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three principles are applied:-
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(i) Whether plaintiff has a prima facie case;
Date: 2022.08.17 17:46:25 IST
(ii) Whether balance of convenience is in favour of the plaintiff;
(iii) Whether the plaintiff would suffer irreparable injury if temporary
injunction is declined.
The trial Court, as well as, the first appellate Court have exercised the
jurisdiction to deal with the prayer of injunction on the aforesaid sound
principles of law.
Further, it is well settled that conduct of the parties is a relevant
consideration for grant of injunction, as this Court in Rajesh Mishra Vs.
Rajesh Vilas Singh Kushwaha (2015 (2) MPLJ 698) has observed thus:-
"13. The Apex Court in 2010 (2) JLJ 210, Narendra Kante vs.
Anuradha Kante and others opined that, while considering an application
for grant of injunction, the Court has not only to take into consideration
the basic elements regarding existence of a prima facie case, balance of
convenience and irreparable injury, it has also to take into consideration
the conduct of the parties since grant of injunction is an equitable relief.
14. This Court in 1986 (1) MPWN 159, Kamal Singh Vs. Jairam
Singh opined that temporary injunction cannot be claimed merely on the
basis of possession. The possession must be legal. Possession of
trespassers cannot be protected. Same view is taken by this Court in 1990
(1) MPWN SN 136, Dattatraya Vaishampayan Vs. Janakarya Vibhag
Karmachari Grih Nirman Sahakari Samiti"
That apart, in the case of Mohd Mehtab Khan & Ors vs. Khushnuma
Ibrahim Khan ((2013)9 SCC 221), the Apex Court has held that if view of
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the trial Court is a possible view then the appellate Court should not interfere
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with the same.
Date: 2022.08.17 17:46:25 IST
In the instant case, the trial Court, as well as, the lower appellate Court
have duly considered the elements of prima facie case, balance of convenience
and irreparable injury which may be caused. The first appellate Court has
further found that the grounds raised can be adjudicated only after evidence is
recorded and rightly refused to interfere with the order of the trial Court.
Hence, I do not find any apparent error committed by both the Courts
below so as to invoke inherent powers under Article 227 of the Constitution of
India. The petition being without any merit fails and is hereby dismissed.
It is made clear that the observations in this order shall not affect the
merits of the case before the trial Court in any manner.
(S. A. DHARMADHIKARI)
JUDGE
HS
Signature Not Verified
SAN
Digitally signed by HEMANT SARAF
Date: 2022.08.17 17:46:25 IST
