Madhya Pradesh High Court
Smt. Bantibai vs Sunil on 21 February, 2022
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 21st OF FEBRUARY, 2022
MISC. PETITION No. 816 of 2022
Between:-
1. SMT. BANTIBAI W/O LATE MADHUKAR KAPALE ,
AGED ABOUT 65 YEARS, OCCUPATION: SELF
EMPLOYED R/O VILLAGE LINGA OPPOSITE BUS
STATND LINGA TAHSIL AND DISTRICT
CHHINDWARA (MADHYA PRADESH)
2. SMT. SANGITA W/O BABAN KARADE , AGED
ABOUT 37 YEARS, OCCUPATION: SELF EMPLOYED
R/O VILLAGE LINGA OPPOSITE BUS STATND
LINGA TAHSIL AND DISTRICT CHHINDWARA
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI JAIDEEP SIRPURKAR, ADVOCATE)
AND
1. SUNIL S/O LATE MADHUKAR KAPALE , AGED
ABOUT 43 YEARS, OCCUPATION: NIL R/O VILLAGE
UMARIYA TAHSIL AND DISTRICT CHHINDWARA
(MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
COLLECTOR DISTRICT CHHINDWARA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI MANOJ KUSHWAHA, PANEL LAWYER )
This petition coming on for admission this day, the court passed the
following:
ORDER
The present petition has been filed challenging the order dated 09.02.2022,
passed in Misc. Civil Appeal No.55/2021 whereby the appeal filed by the
respondent herein has been allowed and the interim injunction has been granted
regarding alienation of the property.
It is submitted that respondent No.1 filed a civil suit seeking relief for
declaration of title and injunction. Claim in the suit was based upon the allegation
that the suit property fell into the share of father of the respondent No.1 in family
Signature Not Verified
SAN partition. By virtue of will dated 05.02.2018 executed by the father of the
Digitally signed by ANINDYA SUNDAR
MUKHOPADHYAY
Date: 2022.02.24 18:41:14 IST
respondent No.1 in his favour, the suit property devolved upon the respondent
No.1. Thereafter the names of petitioners being wife and daughter of the testator
were recorded in the revenue records. Alongwith the plaint an application seeking
injunction was also filed to the effect that the partition proceedings pending before
the Revenue Court be stayed during the pendency of the suit. The aforesaid
application was being opposed contending therein that the Will on the basis of
which the claim of the respondent No.1 is based is forged and fabricated. The
application for grant of injunction was rejected by the learned Trial Court vide
order dated 09.10.2021 and it was held by the Trial Court that the question of
validity of Will is to be decided. It is submitted that the Appellate Court has
considered the aspect and passed the impugned order directing not to alienate the
property and relief for injunction was granted. It was argued that the petition has
been filed on the ground that no such relief was prayed by the plaintiff before the
Trial Court. He has drawn attention of this Court to the pleadings of the civil suit
and the relief which has been claimed which is filed along with this petition and has
argued that no relief of restraining the alienation of property has been prayed for.
Therefore, the Appellate Court has exceeded its jurisdiction in extending the
benefits. He has placed reliance upon the judgment passed by the Supreme Court
in the case of Bachhaj Nahar Vs. Nilima Mandal reported in (2008) 17 SCC
491 and Prabhu Dayal and another Vs. Bari Bai and another reported in
2013 (2) MPLJ 289. It is submitted that the same analogy has been followed by
the Courts and it was held that no relief can be granted which has not even prayed
by the plaintiff in the plaint. Therefore, the petition is being filed praying for setting
aside the order passed by the Appellate Court. Counsel for the petitioner has
further argued that the outcome of the civil suit will be covered by the lis
pendence, therefore, there is no requirement of such injunction order.
Heard the learned counsel for the parties and perused the record.
From the perusal of the record, it is seen that the undisputed question being
filing of civil suit along with an application seeking injunction, the same was being
opposed by the respondent No.1 and on the objection being taken the application
Signature Not Verified
for grant of injunction was rejected by the learned Trial Court. On appeal being
SAN
Digitally signed by ANINDYA SUNDAR
preferred, the Appellate Court has allowed the appeal and directed not to alienate
MUKHOPADHYAY
Date: 2022.02.24 18:41:14 IST
the property during the pendency of the civil suit.
It is not disputed that the injunction not to create any third party interest is
being granted by the Appellate Court. The parties are in possession of the
property. The proceedings are pending consideration before the Revenue Court as
well as in the civil suit before the learned Trial Court. The only direction which
have been given by the Appellate Court is not to create any third party interest
during the pendency of the civil suit. The aforesaid direction appears to have been
given just to avoid the multiplicity of the litigation. If the third party interest is
created in the matter, then there will be multiplicity of the litigation. The judgment
which has been placed reliance upon in the present case are not applicable to the
facts and circumstances of the present case.
It is seen from the records that the civil suit filed on the basis of Will, which
is yet to be proved. In such circumstances, direction for not alienating the property
is just and proper. The Will is yet to be established before the learned Trial Court
by leading cogent evidence. In such circumstances, no illegality appears to have
been committed by the learned Trial Court.
This is a petition under Article 227 of the Constitution of India and this
Court is having limited scope of exercising supervisory jurisdiction and has limited
scope of interference. The aforesaid aspect was considered in the case of Shalini
Shyam Shetty Vs. Rajendra Shhankar Patil reported in (2010) 8 S CC 329,
wherein certain guidelines have been issued by the Supreme Court, which are as
under :-
"The scope of interference under Article 227 of the
Constitution is limited. If order is shown to be passed by a Court
having no jurisdiction, it suffers from manifest procedural impropriety
or perversity, interference can be made. Interference is made to ensure
that Courts below act within the bounds of their authority. Another
view is possible, is not a ground for interference. Interference can be
made sparingly for the said purpose and not for correcting error of
facts and law in a routine manner."
Signature Not Verified
In such circumstances, no relief as claimed in the petition can be extended.
SAN
Digitally signed by ANINDYA SUNDAR
Petition sans merits and is accordingly dismissed.
MUKHOPADHYAY
Date: 2022.02.24 18:41:14 IST
(VISHAL MISHRA)
JUDGE
AM
Signature Not Verified
SAN
Digitally signed by ANINDYA SUNDAR
MUKHOPADHYAY
Date: 2022.02.24 18:41:14 IST
