Madhya Pradesh High Court

Sardarsingh vs Mangilal on 9 March, 2022

Author: Anil Verma

        HIGH COURT OF MADHYA PRADESH
1                                                            MP No.1356/2021

                               BEFORE
             HON'BLE SHRI JUSTICE ANIL VERMA

                     ON THE 9th OF MARCH, 2022

                 MISC. PETITION No. 1356 of 2021

     Between:-
   SARDARSINGH S/O LATE SHRI BHUVANJI , AGED ABOUT 71
1. YEARS, OCCUPATION: AGRICULTURIST VILL-VINAYGA,
   TEH. GHATTIYA (MADHYA PRADESH)
   RAJESH S/O SHRI SARDARSINGH BHATI , AGED ABOUT 40
   YEARS,   OCCUPATION:     AGRICULTURIST     VILLAGE
2.
   VINAYGA. TEH. GHATTIYA DIST. UJJAIN (MADHYA
   PRADESH)
   SUBHASH S/O SHRI SARDARSINGH BHATI , AGED ABOUT 36
   YEARS,   OCCUPATION:     AGRICULTURIST     VILLAGE
3.
   VINAYGA. TEH. GHATTIYA DIST. UJJAIN (MADHYA
   PRADESH)
   JITENDRA S/O SHRI SARDARSINGH BHATI , AGED ABOUT 31
   YEARS,   OCCUPATION:     AGRICULTURIST     VILLAGE
4.
   VINAYGA. TEH. GHATTIYA DIST. UJJAIN (MADHYA
   PRADESH)
                                                    .....PETITIONER
     (BY SHRI A.S. Garg, Senior Adv. With Ms. Poorva Mahajan Adv.)

     AND

     MANGILAL S/O SHRI BHERULAL JI , AGED ABOUT 73
1.   YEARS,     OCCUPATION:      AGRICULTURE       20/11,
     CHANDRASHEKHAR AZAD MARG (MADHYA PRADESH)
     RAMESHCHANDRA S/O SHRI BHERULAL JI , AGED ABOUT
     70 YEARS, OCCUPATION: AGRICULTURE A 22/13,
2.
     BASANTVIHAR COLONY INDORE ROAD. UJJAIN (MADHYA
     PRADESH)
     NARENDRA S/O SHRI BHERULAL JI , AGED ABOUT 50
3.   YEARS, OCCUPATION: SERVICE 20/11, CHANDRASHEKHAR
     AZAD MARG (MADHYA PRADESH)
     BALMUKUND S/O SHRI BHERULAL JI , AGED ABOUT 60
4.   YEARS, OCCUPATION: BUSINESS 19/11, CHANDRASHEKHAR
     AZAD MARG. UJJAIN (MADHYA PRADESH)
     BANSHILLA S/O SHRI BHERULAL JI , AGED ABOUT 60
5.   YEARS, OCCUPATION: BUSINESS 19/11, CHANDRASHEKHAR
     AZAD MARG. UJJAIN (MADHYA PRADESH)
     KAILASHPRASAD S/O SHRI BHERULAL JI , AGED ABOUT 63
     YEARS,   OCCUPATION:     AGRICULTURE      B    2/13,
6.
     BASANTVIHAR COLONY. INDORE ROAD. UJJAIN (MADHYA
     PRADESH)
     STATE OF M.P. THR. COLLECTOR UJJAIN (MADHYA
7.
     PRADESH)
                                                 .....RESPONDENTS
     (BY SHRI S.K. Shastri Adv. )
      HIGH COURT OF MADHYA PRADESH
2                                                            MP No.1356/2021

         This miscellaneous petition coming on for orders this day,

the court passed the following:

         As prayed by both the parties, the matter is heard finally at

motion stage.


                             ORDER

1/ The petitioners/plaintiffs have filed the present petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 17.3.2021 passed by the 4th Addl. District Judge, Ujjain in Misc. Civil Appeal No.543/2020, whereby the miscellaneous civil appeal filed by the respondents No.1 to 6/defendants has been allowed and an application under Order 39 Rule 1 & 2 of CPC filed by the respondent No.1 to 6 has been dismissed and order dated 29.1.2020 passed by the 1st Civil Judge, Ujjain has been set aside.

2/ The facts in brief are that the petitioners/plaintiffs have filed a suit for declaration of title and permanent injunction along with an application under Order 39 Rule 1 & 2 of CPC against the defendants alleging that disputed suit property situated at village Vinayga, District Ujjain has been cultivated by one Buvanji, father of plaintiff No.1 and grand-father of plaintiffs No.2 to 4 and upon his death, plaintiffs are in continuous possession and ownership of the suit land since last 25 years. After hearing both the parties, trial Court has allowed his application and rejected the application of defendants and also directed that defendants shall not interfere in the possession of the plaintiffs over the suit property. Then respondents No.1 to 6/ defendants filed a miscellaneous appeal before the 4th ADJ, Ujjain against the impugned order dated 29.1.2020. Plaintiffs HIGH COURT OF MADHYA PRADESH

also filed a miscellaneous appeal before the same Court against the impugned order. Both the miscellaneous appeals were heard by the first appellate court jointly and a composite impugned order dated 17.3.2021 has been passed. Hence this petition has been filed by the petitioners before this Court.

3/ Learned counsel for the petitioners submits that the impugned order dated 17.3.2021 is illegal and bad in law. The first appellate court has wrongly granted temporary injunction in favour of the respondents/defendants and the order of temporary injunction given by the trial Court in favour of the petitioners has been dismissed. There is no prima facie case, balance of convenience and irreparable injury in favour of the respondents/defendants. Trial Court has rightly granted injunction in favour of the petitioners but the first appellate court has not considered the legal aspects and passed the impugned order contrary to the law. Therefore, the same deserves to be dismissed and the order dated 29.1.2020 passed by the trial Court be upheld and respondents No.1 to 6 be restrained from interfering in possession of the petitioners. Learned counsel for the petitioners further contended that learned appellate court has erred in not deciding the question of possession of plaintiffs as the same has been accepted by the defendant No.2 & 3 in their statement before the Sessions Court. Learned appellate court has failed to consider that recording of name in revenue record neither confers the title nor it decides the title. Learned appellate court has failed to consider that plaintiffs are in possession of the suit property since last 25 years. Learned counsel for the petitioners has also placed reliance upon the judgment of the Apex Court in the case of Rame Gowda (Dead) Vs. M. Varadappa Naidu and another reported in (2004) 1 SCC 769, in which it has been held that:-

"10. In the case of Munshi Ram and Puran Singh the Court has approved the statement of law made in HIGH COURT OF MADHYA PRADESH

Horam Vs. R. wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property."

4/ Per contra, learned counsel for the respondents has opposed the prayer made by the petitioner by supporting the impugned order passed by the first appellate court.

5/ I have heard the learned counsel for both the parties at length and gone through the documents filed by both the parties.

6/ On perusal of the record, it appears that name of the respondents No.1 to 6/defendants was mentioned in the Kistbandi Khatoni and Panchshala Khasra and other revenue records as Bhumiswami. Their names have been mutated over the suit property by nomination order dated 27.11.2019. Undoubtedly name of the petitioners/plaintiffs are not recorded as Bhumiswami over the suit property, even they have not purchased the suit property from any person. Respondent No.1 Mangilal has deposed before the Sessions Court that respondents No.1 to 6 are the registered owner of the suit property and they have given suit property to the respondents No.1 to 3 for Batai in the year 2015.

7/ Learned counsel for the petitioners contended that petitioners possess the suit land since last 25 years but they did not file any relevant document in support of their contention. Even the names of the petitioners were not mentioned as possession holder in Para-4 of the Khasra or Kistibandi Khatoni of the suit land.

HIGH COURT OF MADHYA PRADESH

8/ In view of the above, prima facie it appeared that petitioners/plaintiffs are encroacher over the suit property and they also tried to commit murder of respondent No.1 Mangilal and his brothers. Therefore, in view of the conduct of the petitioners, equity is not in favour of them. It is prima facie established that petitioners are not the registered owner or Bhumiswami of the suit property. Prima facie their title is not established over the suit property. They did not file any relevant documents regarding any lease or agreement in support of their contention. Therefore, petitioners/plaintiffs have failed to prove their prima facie case in respect of the title and possession over the suit property. Hence, the balance of convenience and irreparable loss are also not in their favour. The appellate court has rightly held that petitioners are not entitled for any temporary injunction.

9/ In the light of the above observation, no patent illegality or irregularity has been committed by the appellate court below and the impugned order passed by the appellate court below does not suffer from any jurisdictional error. Therefore, this Court does not find any reason to interfere in the impugned order.

10/ Accordingly this miscellaneous petition sans merit and is hereby dismissed.

C.C. as per rules.

(Anil Verma) Judge trilok/-