Madhya Pradesh High Court
Ram Singh vs Babulal on 13 October, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 13th OF OCTOBER, 2022
MISC. PETITION No. 6858 of 2019
BETWEEN:-
1. RAM SINGH S/O BATTU, AGED ABOUT 50
Y E A R S , OCCUPATION: FARMER VILL.
BHADKUL TEH RAHETI (MADHYA PRADESH)
2. KAMAL SINGH S/O ANOKHILAL, AGED ABOUT
45 YEARS, OCCUPATION: FARMAR VILLAGE
BHADKUL TEH. RAHETI (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI SIDDHARTH GULATEE, ADVOCATE)
AND
1. BABULAL S/O HARLAL BHADKUL TEH. RAHETI
(MADHYA PRADESH)
2. SANTRAM S/O ANOKHI LAL VILLAGE
BHADKUL TEH. RAHETI (MADHYA PRADESH)
3. SURESH S/O DALLA VILLAGE BHADKUL TEH.
RAHETI (MADHYA PRADESH)
4. SHYAMLAL (DEAD) THROUGH LRS. SMT.
VIMLA BAI W/O LATE SHAYAMLAL VILLAGE
BHADKUL TEH. RAHETI (MADHYA PRADESH)
5. RAMANLAL S/O LATE SHAYAMLAL VILLAGE
BHADKUL TEH. RAHETI (MADHYA PRADESH)
6. JEEVAN SINGH S/O LATE SHAYAMLAL VILLAGE
BHADKUL TEH. RAHETI (MADHYA PRADESH)
7. RAMA (DEAD) LRS. LAKHANLAL S/O LATE
R A M A VILLAGE BHADKUL TEH. RAHETI
(MADHYA PRADESH)
Signature Not Verified
SAN
8. MAHINDRA SINGH S/O LATE RAMA VILLAGE
Digitally signed by AMIT JAIN
Date: 2022.10.14 19:48:28 IST
BHADKUL TEH. RAHETI (MADHYA PRADESH)
2
9. RADHE SHYAM S/O BHOLYA VILLAGE
BHADKUL TEH. RAHETI (MADHYA PRADESH)
10. STATE OF MP THORUGH COLLECTOR DISTT.
SEHROE (MADHYA PRADESH)
.....RESPONDENTS
(STATE BY SMT.SWATI ASEEM GEORGE, PANEL LAWYER)
(RESPONDENT NO.1 BY SHRI SATYAM AGRAWAL, ADVOCATE)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
This Miscellaneous Petition under Article 227 of the Constitution of India
is filed by the petitioners/defendant Nos.1 & 7 being aggrieved of order
Annexure P/9 dated 5.11.2019 passed by learned Civil Judge Class-I Budhni,
District Sehore in R.C.S.A No.13/2018 allowing two interlocutory applications
filed under Section 151 and Order XXVI Rule 9 of the Code of Civil
Procedure, 1908 (for short "C.P.C")
Brief facts of the case are that a suit was filed by one Babulal against
Ram Singh, Santram, Suresh & Others for declaration of title, permanent
injunction and cancellation of sale deed. In the said civil suit, the present
petitioners had filed their counter claim. The plaintiff had filed an application
under Order XXXIX Rule 1&2 of the C.P.C for injunction. Similar application
was filed by the petitioners/defendant Nos.1 & 7.
The Trial Court vide order dated 30.9.2019 allowed the application under
Order XXXIX Rule 1&2 of the C.P.C filed by the defendant Nos.1&7 and
granted injunction restraining the plaintiff from causing any interference in the
property of the defendant(s) by a separate order of the same date. However, the
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Trial Court rejected the application filed by the plaintiff under Order XXXIX
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Rule 1&2 of the C.P.C recording a specific finding on Internal Page No.6 of its
order that the plaintiff has failed to prove through any documentary evidence his
possession on complete portion of Survey No.52 or part thereof. The Trial
Court further recorded a finding that the property in question was sold in favour
of the defendant No.7 Kamal Singh vide registered sale deed in the year 2018
transferring 0.081 hectare/0.20 acre of land in favour of Kamal Singh. The Trial
Court then recorded a finding that neither the balance of convenience nor the
aspect of prima facie case or the irreparable injury are available in favour of the
plaintiff and dismissed that application.
Soon thereafter, two application were filed by the plaintiff; one under
Section 151 of the C.P.C and another under Order XXVI Rule 9 of the C.P.C.
In the application under Section 151 of the C.P.C, a plea was taken that on
17.10.2019, the defendant No.7 Kamal Singh alongwith Tahsildar Rehti and
Police Force armed with JCB Machine etc approached them for removal of
their construction, which is existing on the suit land since 1999 on the strength
of the order of injunction dated 30.9.2019 granted in favour of the defendant(s).
Prayer is made in that application to not to dispossess the plaintiff from the suit
land. Similarly, the application under Order XXVI Rule 9 of the C.P.C was filed
by the plaintiff making alternative plea that firstly the Commissioner be
appointed to ascertain as to who is in possession of the suit land and secondly
demarcation be carried out over the suit land. These two applications have been
allowed by learned Trial Judge taking a somersault from the earlier stand taken
by him on 30.9.2019 without there being any additional evidence available on
record.
Learned counsel for the petitioners submits that firstly the plaintiff had
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not filed any appeal challenging the order refusing to grant injunction in his
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Date: 2022.10.14 19:48:28 IST
favour or the order vide which the injunction was granted in favour of the
petitioners/defendant Nos.1 & 7 and secondly the application under Section
151 of the C.P.C is not maintainable because if there was any change in the
circumstance then there is a substantive provision, which should have been
taken recourse to and the provisions under Section 151 of the C.P.C could not
have been resorted to despite existence of the substantive provisions of law in
this behalf in the Code of Civil Procedure, 1908.
As far as the application under Order XXVI Rule 9 of the C.P.C is
concerned, the plaintiff is requried to establish his own case and that application
should not have been allowed by the Trial Court so as to permit the plaintiff to
collect evidence as it is contrary to the judgment of this Hon'ble High Court
rendered in Ashutosh Dubey & Another versus Tilak Grih Nirman
Sahkari Samiti & Another 2004 (3) M.P.L.J 213.
Learned counsel for the respondent No.1/plaintiff in his turn supports
the impugned order and submits that there was change in the circumstance. The
defendant Nos.1&7 themselves proved the possession of the plaintiff by
moving an application before the Tahsildar and Police Station for removal of his
construction, and, therefore, he is in agreement that those applications were not
made part of the record before the Trial Court. He also submits that the
pleadings duly supported with an affidavit were made part of the record as is
apparent from the application under Section 151 of the C.P.C.
After hearing learned counsel for the parties and going through the
material available on record, it is evident that vide order dated 30.9.2019, the
Trial Court has categorically recorded a finding that there was no documentary
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evidence available on record as produced by the plaintiff to establish his title or
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possession either on the whole or on the part of Survey No.52, which is the
Date: 2022.10.14 19:48:28 IST
subject matter of dispute in the civil suit. Without recording the evidence in this
behalf, the Trial Court was clearly in error in reversing its finding, which puts a
question to the bonafide of the Trial Court.
Thus, the application under Section 151 of the C.P.C should not have
been allowed by the Trial Court when there is a substantive provision under the
law and in view of the verdict of Hon'ble the Supreme Court in K.K.Velusamy
versus N.Palanisamy (2011) 11 SCC 275, the recourse to Section 151 of the
C.P.C cannot be taken to in view of the availability of the substantive provisions
of law, and, therefore, the impugned order Annexure P/9 dated 5.11.2019
passed by learned Civil Judge Class-I Budhni, District Sehore in R.C.S.A
No.13/2018 cannot be given a seal of approval.
As far as the application under Order XXVI Rule 9 of the C.P.C is
concerned, the ratio of law laid down in Jaswant S/o.Kashi Ram Yadav
versus Deen Dayal 2011 (2) M.P.L.J 576 is that after the parties adduce their
evidence and if there is any dispute as to the boundaries, which can be sorted
out through demarcation then the Trial Court should on an application or
without an application allow application under Order XXVI Rule 9 of the
C.P.C.
In the present case, there is no dispute of demarcation. The plaintiff has
himself filed a suit seeking cancellation of the sale deed, which means that there
is a tacit admission of parting with possession of the suit property. It is not a
case that the defendant Nos.1&7 have encroached upon some portion of the
property of the plaintiff. Thus, there is no issue pertaining to demarcation
involved in the present case. The Trial Court was clearly in error in allowing the
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application under Order XXVI Rule 9 of the C.P.C, which is contrary to the
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Date: 2022.10.14 19:48:28 IST
ratio of law laid down by a Coordinate Bench of this Hon'ble High Court in
Ashutosh Dubey & Another versus Tilak Grih Nirman Sahkari Samiti &
Another (supra).
Accordingly, this Miscellenous Petition is allowed setting aside the
impugned order Annexure P/9 dated 5.11.2019 passed by learned Civil Judge
Class-I Budhni, District Sehore in R.C.S.A No.13/2018.
Parties are directed to bear their own costs as incurred in this
Miscellaneous Petition.
(VIVEK AGARWAL)
JUDGE
amit
Signature Not Verified
SAN
Digitally signed by AMIT JAIN
Date: 2022.10.14 19:48:28 IST
