Madhya Pradesh High Court

Dr. Shyamsundar vs Deepak on 11 May, 2022

Author: Anil Verma

                             1
                                       MISC. PETITION No. 1315 of 2022

       IN THE HIGH COURT OF MADHYA PRADESH
                     AT INDORE
                         BEFORE
             HON'BLE SHRI JUSTICE ANIL VERMA

                  ON THE 11th OF MAY, 2022

              MISC. PETITION No. 1315 of 2022

 Between:-
 DR. SHYAMSUNDAR S/O DR. BHUWANIRAM PATIDAR , AGED ABOUT
 38 YEARS, OCCUPATION: BUSINESS 48, KATJU MARKET, NEAR
 SAILANA BRIDGE (MADHYA PRADESH)

                                                 .....PETITIONER

 (BY SHRI VINAY SARAF LEARNED SR. COUNSEL ALONG WITH SHRI
 LOKESH MEHTA, ADVOCATE)

 AND

   DEEPAK S/O DR. BHUWANIRAM PATIDAR , AGED ABOUT 36 YEARS,
1. OCCUPATION: BUSINESS GAROTH (MADHYA PRADESH)

   JEEWAN S/O DHANSUKH PATIDAR , AGED ABOUT 28 YEARS,
   OCCUPATION:  BUSINESS ARNODA,   TEHSIL  NIMBAHEDA
2.
   (RAJASTHAN)

   SHANKAR DAYAMA S/O KAMLESH DAYAMA , AGED ABOUT 27
   YEARS, OCCUPATION: BUSINESS KHATIK MOHALLA, NEAR GANESH
3.
   MANDIR, GAROTH (MADHYA PRADESH)

   VISHAL S/O SHIV NARAYAN PRADHAN , AGED ABOUT 39 YEARS,
   OCCUPATION: BUSINESS NEAR AGRAWAL PANCHAYAT BHAWAN,
4.
   PANDEY MOHALLA, GAROTH (MADHYA PRADESH)

   YASHWANT S/O MADANLAL PATIDAR , AGED ABOUT 22 YEARS,
   OCCUPATION: BUSINESS PRAGYA NAGAR, GAROTH (MADHYA
5.
   PRADESH)
                                        2
                                                   MISC. PETITION No. 1315 of 2022

                                                          .....RESPONDENTS

   (BY SHRI AMIT AGRAWAL, LEARNED SR. COUNSEL ALONG WITH SHRI
   ADITYA GOYAL, ADVOCATE )

       This petition coming on for admission this day, the court passed
the following:
                                   ORDER

With consent of both the parteis, present petition is heard finally.

2. The petitioner/plaintiff has filed present petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 15/03/2022 passed by Iind District Judge, Garoth, District - Mandsaur in Misc. Civll Appeal no. 02/2021 whereby set aside the order dated 25/03/2021 passed by Civil Judge, Class-I, Garoth and dismissed the application filed under Order 39 Rule 1 and 2 of CPC by the petitioner/plaintiff.

3. Facts of the case in brief are that the petitioner/plaintiff filed the suit for permanent injunction and declaring the registered sale deed and the WILL as null and void. The petitioner / plaintiff filed the suit against the defendant/s alleging that Late Shri Bhuwaniram was the owner of the ancestral property at Garoth Dist. Mandsaur, bearing survey no. 413 and survey no. 446/1 and the house no. 635 situated at survey no. 1515, near Agrawal Panchayat Bhawan, Garoth Dist. Mandsaur. Father of the plaintiff Bhawaniram was not medically fit. Since 2003, he is not in fit condition to sell out the suit land. He had never executed the registered sale deed in favour of the respondent no.1 /defendant and had not executed the WILL dated 16/01/2017. The petitioner also filed an application under

MISC. PETITION No. 1315 of 2022

Order 39 Rule 1 and 2 of CPC. After hearing both the parties, the trial Court allowed the application and respondent nos. 1 to 3 were restricted from alienating or creating any third party right over the suit property till final disposal of the civil suit. Then, respondent no. 1/ defendant preferred an appeal before the lower Appellate Court and the lower Appellate Court, after hearing both the parties, set aside the impugned order passed by the trial Court and rejected the application for temporary injunction. Being aggrieved by the said order, the petitioner/plaintiff has filed present petition before this Court.

4. Learned counsel for the petitioner has contended that the lower Appelalte Court has committed grave error by not considering that prima-facie case, balance of convenience and irreparable loss are in favour of the plaintiff/petitioner. Late Bhawaniram was not medically and physically fit to execute any WILL or sale deed. The lower Appellate Court has also not given any due weitage to the affidavit executed by the sister ofthe plaintiff and reversed finding of the trial Court on the basis of new evidence. The lower Appellate Court's findings are not based upon proper appreciation of the evidence as also not given any weitage to the documents and citations produced by the plaintiff. The impugned order passed by the lower Appellate Court is bad in law, perverse and against the law and facts available on record. Hence, learned counsel prays that the impuged order dated 15/03/2022 be set aside.

5. To bolster his contentions, learned counsel for the petitioner has placed reliance upon the judgments delivered in the case of Kesharbai Wd/o Hajari and others Vs. Narayan S/o Mangilal and others reported in 2001(2) MPLJ 338; V.K. Surendra Vs. V.K. Thimmaiah

MISC. PETITION No. 1315 of 2022

and others reported in (2013) 10 SCC 211; Gram Panchayat, Babani and others Vs. Rameshwar Jaat and others ( M.P. no. 1568/2021 decided on 30/03/2022); and Maharwal Khewaji Trust Vs. Baldev Dass reported in (2004) 8 SCC 488.

6. Per-contra, learned cousnel for the respondents/defendant has opposed the prayer made by learned counel for the petitoner by supporting the impugned order passed by the lower Appellate Court and also submitted that the lower Appellate Court has rightly dismissed the application filed by the plaintiff/petitioner for grant of temporary injunction. Learned counsel also contended that Late Bhawaniram had purchased the suit house individually and since 1986, the suit house is recored in his name in the municipal records and it cannot be treated as anscestral property. Late Bhawaniram had voluntarily executed the registered sale deed in respect of the suit property in favour of respondent no. 1 and also executed the WILL in fit mental condition. Illness of Late Bhawaniram cannot be treated as mentally unfit. The suit land/property was not part of the anscestral property, rather belonged to grand father of the petitioner Rambaksh. Jont share of Late Bhawaniram has already been partitoned between the plaintiff/petitioenr Shyamsunder and respondent no.1 Dinesh. Hence, learned counsel prays that present petition deserves to be dismissed.

7. To bolseter his contention, learned cousnel for the respondent has placed reliance upon the judgments delivered in the case of Commissioner of Wealth Tax, Kanpur and others Vs. Chander Sen and others reported in (1986) 3SCC 567; Yudhishter Vs. Ashok Kumar reported in (1987)1 SCC 204; Uttam Vs. Saubhag Singh and

MISC. PETITION No. 1315 of 2022

others reported in 2017(1) MPLJ 6; Vindhya Telelinks Lts Vs. State Bank of India, Rewa and othes reported in 1995 MPLJ 575; Puri Investments Vs. Young Friends and Co. And others reported in 2022 SCC Online SC 283 and Sadhana Lodh Vs. National Insurance Co. Ltd and another reported in (2003) 3 SCC 524.

8. After hearing learned counsel for both the parties and going through the findings recorded by the trial Court as well as the lower Appellate Court and the pleadings in the instant case, it is apparent that the four registered sale deeds ( Ex.-P/9 to Ex-P/12) have been executed by Late Bhawaniram in favour of respondent no. 1/defendant Deepak Patidar. The WILL dated 16/01/2017 is also the registered WILL, which was allegedly exdcuted by Late Bhawaniram in favour of respondent no. 1/defendant. From perusal of the Khasra (Ex._P/15), it appears that the suit property was recorded only in the name of Late Bhawaniram. Respondent no. 1 has filed some mutation records, from which, it appears that Late Bhawaniram has already partitioned his other properties in favour of his sons and daughters..

9. Learned cousnel for the petitioner contended that Late Bhawaniram was suffering from various diseases since 2003 and he was not mentally fit condition to execute the afoesaid sale-deeds and the WILL, but the plaintiff did not file any medical certificate to establish that Late Bhawaniram was mentally and physically unfit at the time of execution of the registered sale deed or the WILL, therefore, prima-facie, it is not established that Late Bhawaniram was unfit to execute such registered sale deed or WILL; Genuinness of the registered sale-deeds and the WILL and all other circumstances, in which the aforesaid registered

MISC. PETITION No. 1315 of 2022

sale-deeds and the WILL were executed, shall be considered on merit after completing evidence of both the parties, but prima-facie, aforesaid registered documents cannot be ignored or disbelieved at that stage. Prima-facie, the petitioner/plaintiff has failed to prove his possession over the suit property. From perusal of the registered sale-deeds, it appears that at the time of execution of the aforesaid registered sale-deeds, the possession of the disputed property/land was handed over to respondent no.1, therefore, prima-facie, the petitioner/ plaintiff does not hold any physical possession over the suit property. Balance of convenience, irreparable loss, all these necessary ingredients are not found in favour of the petitioner/plaintiff, therefore, the lower Appelalte Court has rightly held that the petitioenr/plaintiff is not entitled for temporary injunction and the impugned order passed by the lower Appellate Court appears to be just and proper. It does not suffer from any jurisdictional error, therefore, this Court does not find any reason to interfere into the impugned order passed by the lower Appellate Court.

10. Hon'ble Supreme Court in the case of Sadhana Lodh Vs. National Insurance Co. Ltd and another reported in (2003) 3 SCC 524, has held as under :

"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision."

MISC. PETITION No. 1315 of 2022

11. In view of the aforesaid discussions, the petitioner/plainfiff dies not deserve for any termporary injunction agaisnt the respondent. Accordingly, present Misc. Petition is hereby dismissed.