Sewakaram vs Sushila Bai @ Shefali
2022 Latest Caselaw 4252 MP

                                                M.A.No. 2920 OF 2012.
                              1

IN THE HIGH COURT OF MADHYA PRADESH AT ABALPUR

                          BEFORE

       HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA

                ON THE 28th OF MARCH,2022.

                MISC. APPEAL No. 2920 of 2012

Between:-

1.   SEWAKARAM S/O SHRI CHETANDAS
     PAGARWARE , AGED ABOUT 48
     YEARS, VILLAGE SINGOLA, TAHSIL
     LANJHI,    DISTT.   BALAGHAT,
     (MADHYA PRADESH)

2.   ARUN DAS S/O SHRI CHETANDAS
     PAGARWARE, AGED ABOUT 45 YEARS,
     VILLAGE- SINGOLA, TAHSILLANJHI,
     DISTT.       BALAGHAT,(MADHYA
     PRADESH)

                                                   (APPELLANTS)

(BY SHRI SANJAY SARWATE, ADVOCATE)

AND

1.   SUSHILA BAI @ SHEFALI W/O SHRI
     DURGESH LILHARE , AGED ABOUT 39
     YEARS, INFRONT OF DR. REKHA
     DUBEY, NEAR MAJAR, AYODHYA
     NAGAR, RING ROAD, GONDIA, MS
     (MAHARASHTRA)

2.   RAJKUMAR S/O SHRI CHETANDAS
     PAGARWARE , AGED ABOUT 42
     YEARS, VILLAGE SINGOLA, TAHSIL
                                                              M.A.No. 2920 OF 2012.
                                         2

     LANJHI, DISTT. BALAGHAT,                   M.P.
     (MADHYA PRADESH).

                                                                (RESPONDENTS)

(BY SHRI SHISHIR SONI, ADVOCATE)

This appeal coming on for order this day, the court passed the following:

-JUDGMENT-

With the consent of the parties this case is heard finally.

1. This appeal has been filed under Order 43 Rule 1(r) of the Code of Civil Procedure by appellants/plaintiffs being aggrieved by the order dated 11.07.2012 passed by the first Additional District Judge, Balaghat (M.P.) in Civil Suit no. 7-A/2012 thereby the learned trial court has rejected the application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure.

2. The appellants/plaintiffs had filed a civil suit for the relief of specific performance of agreement. Alongwith civil suit, they also filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure stating that the respondent no. 1 is the owner of the agricultural land Khasra no. 241/4, area 0.58 acres; Khasra no. 260, area 0.65 acres; and Khasra no 261/7, area 0.25 acres. a total of 1.48 acres (hereinafter referred as suit land) situated in village Singola, Tehsil Lanji, Distt. Balaghat. On 27.08.2008 respondent no. 1 agreed to sale the suit land in favour of appellants and respondent no. 2 for the consideration of Rs. 53,280/-. On the same day, respondent no. 1 after receiving an amount of Rs. 53,280/- executed an agreement in favour of purchasers and she delivered the possession of the suit land to the appellants and M.A.No. 2920 OF 2012.

respondent no. 2. Even after repeated requests by the appellants and respondent no 2, respondent no. 1 denied to execute the sale deed. Respondent No. 1 is trying to sale out the suit land in favour of any other person whereas appellants and respondent no. 2 are in possession of the suit land since 27.08.2008. Therefore prima facie case and balance of covenience are in the favour of appellants & respondent no. 2. If respondent no. 1 succeeds to sale the suit land in favour of any other person then the appellants & respondent no. 2 will suffer with an irreparable loss. Therefore it is necessary to restrict respondent no. 1 from alienation of suit land temporarily till the final disposal of this suit.

3. In the written statement and reply of the appliction respondent no. 1 admitted that appellants and respondent no. 2 are real siblings but denied all the other facts. She has denied agreement to sale the suit land in favour of the appellants and respondent no 2. She has also denied that she after receiving sale consideration,delivered the possession of the suit land and has executed agreement. Respondent no 1 has alleged that she had not agreed to sale the suit land and had not delivered the possession of the suit land to the appellants. Appellants have criminal tendency and respondent no 2 supports the appellants in all kind of their activities. On 24.08.2008 the appellants came to house of their father, Chetan Das in village Singola and broke the lock of box (peti) and took a registered sale deed of respondent no. 1 related to suit land and some documents related to land of Chetan Das and Devki Bai. On 27.08.2008 appellants after giving threat to respondent no 1, her mother and father, coerced them to sign in blank stamps and blank paper carrying revenue tickets on them and got it signed by respondent no. 1 and her father and mother. On 18.09.2008 appellants and respondent no 2 gave threat to kill respondent M.A.No. 2920 OF 2012.

no 1 and her parents on telephone for executing a sale deed of all lands in favour of appellants and respondent no 2. In this respect respondent no. 1 had lodged a report at Police station, Lanji and also had given a written report to S.P. Balaghat. Thereafter a written report has also been filed at Police Station Gondia against appellant no 2.

4. Respondent no 1 has also stated in her reply that suit land is in her possession till today. Appellants and respondent no 2 do not have possession of suit land, alleged agreement is forged. Prima facie case, balance of convenience and irreparable loss are not in favour of appellants & respondent no. 2, therefore application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure is liable to be rejected.

5. The trial court has found that possession of respondent no 1 is mentioned in Khasra year 2010-11 of the suit land. She has not given possession of the suit land to appellants and respondent no 2. Therefore the claim of the appellants & respondent no. 2 that after agreement they have got possession of the suit land is false. The trial court has also found that the main ingredients of temporary injunction i.e. Prima facie case, balance of convinience and irreparable loss are not in favour of appellants & respondent no. 2. Thereafter the trial court has rejected the application of temporary injunction.

6. It has been submitted by the learned counsel for appellants/paintiffs that the learned court has erred by not granting temporary injunction to restrain the respondent no. 1 from alienating the suit land. It has been also submitted that the learned court has erred by not considering the fact that the appellants & respondent no. 2 have paid the full consideration M.A.No. 2920 OF 2012.

amount of Rs. 53,280/- and the possession was delivered to the appellants/plaintiffs. Therefore the counsel for appellants/plaintiffs has prayed for allowing the appeal and to set aside the impugned order.

7. Learned counsel for the respondent no. 1 supported the impugned order and requested to dismiss the appeal.

8. It is considerable that whether the learned trial court has erred in passing the impugned order.

9. In this respect appellants have filed a photocopy of alleged agreement. As per aforesaid agreement, on 27.08.2008 respondent no. 1 agreed to sale the suit land in favour of appellants and respondent no 2 for the consideration of Rs. 53,280/- and same day she received the total amount of consideration from them and has given the possession of the suit land to the appellants and respondent no 2. Respondent no 1 has executed the aforesaid agreement before witnesses but the respondent no. 1 has denied the execution of aforesaid agreement. Respondent no 1 has also filed her affidavit as well as affidavits of Hemraj and Shersingh in support of her reply. As per Kistbandi khatouni and khasra year 2011-12, respondent no 1 is title and possession holder of the suit land, while appellant Sewakram appellant no 1 has filed only his affidavit and has not filed affidavit of any witness in support of their application, appellants have also not filed affidavit of any witness of alleged agreement in support of their application. Therefore, the trial court has not erred in passing the impugned order.

10. Apart from that appellants have not sought a relief of permanent injunction in the instant suit, therefore in my view they are not entitled for M.A.No. 2920 OF 2012.

the temporary injunction under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure.

11. In view of the aforesaid analysis I do not perceive any merit in this appeal and accordingly the same stands dismissed without any order as to costs.

12. Copy of this order to be sent to trial court along with record of Civil Suit No. 48A/14. Both parties are directed to appear before the trial court to participate in the proceeding of civil suit on 29.04.2022.

(PRAKASH CHANDRA GUPTA) JUDGE

MISHRA ARVIND KUMAR MISHRA 2022.03.31 15:51:37 +05'30'