Madhya Pradesh High Court
Vishranti Grah Nirman Sahkari ... vs Dr. Anil Kumar Gangotiya on 24 April, 2023
Author: Sunita Yadav
1 MISC. PETITION No. 2439 of 2021
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 24th OF APRIL, 2023
MISC. PETITION No. 2439 of 2021
BETWEEN:-
VISHRANTI GRAH NIRMAN SAHKARI SAMITI
MARYADIT THROUGH PRESIDENT SHRI INDAR
ASHTHANA S/O LATE SHRI L.S. ASHTHANA H-50,
GOVINDPURI, GWALIOR (MADHYA PRADESH)
.....PETITIONER
(MR. SANJAY KUMAR AGRAWAL - ADVOCATE WITH MR. SANJAY
SINGH - ADVOCATE FOR THE PETITIONER)
AND
DR. ANIL KUMAR GANGOTIYA S/O SHRI L. K.
DESAI, AGED ABOUT 63 YEARS, OCCUPATION:
1. DOCTOR, R/O FLAT NO D-26, GARDEN HOME
PHASE-1, CITY CENTRE, GWALIOR (MADHYA
PRADESH)
SHRI ANAY LAKSHMAN DESAI S/O SHRI L.K. DESAI,
AGED ABOUT 58 YEARS, OCCUPATION: BUSINESS,
2.
R/O FLAT NO. D-15, R/O GARDEN HOME PHASE-1,
CITY CENTER, GWALIOR (MADHYA PRADESH)
3. STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, DEPARTMENT OF
REVENUE, VALLABH BHAWAN, BHOPAL (MADHYA
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/26/2023
4:58:09 PM
2 MISC. PETITION No. 2439 of 2021
PRADESH)
COLLECTOR/DISTRICT MAGISTRATE
4.
COLLECTOR GWALIOR (MADHYA PRADESH)
JOINT DIRECTOR, TOWN AND COUNTRY
5. PLANNING, OFFICE SITUATED AT RAVI NAGAR
GWALIOR (MADHYA PRADESH)
COMMISSIONER NAGAR PALIKA/NIGAM,
6. GWALIOR CITY CENTER GWALIOR (MADHYA
PRADESH)
SHRI DEEPAK KUMAR JAIN, PRESIDENT SWASTIK
GRAH NIRMAN SAHKARI SAMITI MARYADIT
7.
OFFICE AT 31, SHRIRAM COLONY JHANSI ROAD
GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(MR. BHAGWAN DAS JAIN - ADVOCATE FOR RESPONDENTS NO.1 &
2, MR. RAMADHAR CHOUBEY - GOVERNMENT ADVOCATE FOR
RESPONDENT NO. 4 & MR. SHIV SHANKAR BANSAL - ADVOCATE
FOR THE RESPONDENT NO. 6 )
This petition coming on for Admission this day, the court
passed the following:
ORDER
Present misc. petition under Article 227 of Constitution of
India has been filed challenging the order dated 16.07.2021
(Annexure P/1) passed in Misc. Civil Appeal No.59 of 2021 by 7th
Additional District Judge, Gwalior (M.P.) whereby, the appeal filed
by the respondents No. 1 and 2/plaintiffs under Order 43 Rule 1(r)
of CPC has been allowed and setting aside the order dated
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/26/2023
4:58:09 PM
23.06.2021 passed by 3rd JMFC, Class-I, District Gwalior by which
application for interim injunction of plaintiffs was dismissed.
2. Brief facts for disposal of the case are that the
respondents/plaintiffs filed a civil suit for declaration and
permanent injunction with respect to the disputed road and claimed
the easementary right over the road which is situated at Village
Ohadpur, Gwalior. It is stated in the plaint that disputed road was
constructed over the Survey no. 245, when the Garden Homes
Phase-1 was constructed, in the year 2000. Later on, in the year of
2013, the Municipal Corporation constructed the concrete road for
public use, and petitioner's society is making the construction over
its Survey no. 33/2 and Survey No. 250, which is adjacent to the
Survey no. 245, wherein Garden Homes Phase 1 is situated. It is
further stated in the plaint that road is question is the part of Survey
no. 245, and the society is dismantling the road by raising the
construction. Therefore the suit is filed for declaration and
permanent injunction. The plaintiffs also filed an application U/o
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/26/2023
4:58:09 PM
39 Rule 1 and 2 of CPC along with the plaint.
3. The petitioner has filed its reply of the application under
Order 39 Rule 1 and 2 of CPC, and contended that, the aforesaid
colony namely Garden homes, situated in Land bearing survey
No.245, Gram Ohadpur, wherein, the road in question is not the part
of survey number 245, but it is the part of survey number 33/2 and
survey number 250, purchased by the respondent no.6/petitioner
vide registered sale deeds dated 30.06.1982, 01.07.1982,
03.07.1982, 13.07.1982, 14.07.1982, from the previous owner of
the land namely Cheetu, S/o Nahar Singh, after paying the entire
consideration. Since the registration of the sale deed, the answering
respondent is in the settled possession and ownership of the survey
nos. 33/2 and 250.
4. After hearing of both the parties on the application U/o 39
Rule 1 and 2 of CPC, the learned trial court rejected the application
vide order dated 23.06.2021, considering the facts and material
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/26/2023
4:58:09 PM
available on record. Being aggrieved by the order passed by the
learned trial court, the plaintiffs/respondents filed the Misc. Appeal
before the Appellate Court. After hearing of both the parties the
learned Appellate court vide its impugned order Annexure P/1
allowed the appeal and set aside the order passed by the learned
trial court. Hence the present petition is filed.
5. Learned counsel for the petitioner argued that the petitioner's
society is registered under Section 9 of Co-operative Society Act,
1960, (Herein after referred as "act of 1960"), with its registration
number DR/GWR/22/1962. The petitioner's society has passed a
resolution authorizing president of the society to contest the
litigation as raised by the plaintiffs before the civil court. The
Society is raising the construction to provide the House to the
members over their society's land bearing survey no. 33/2 and 250,
situated at village Ohadpur, District Gwalior. Such construction is
with due permission from the concerning Department. The copies
of the permission and resolution are enclosed herewith and marked
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/26/2023
4:58:09 PM
as Annexure P/6, P/7 & P/8. Thus, it is apparent that society is
raising the construction on its own land whereas the plaintiffs are
residents of the other society is raising the objection just for
blackmailing the petitioner/society, once the petitioner has not agree
with their proposals and failed to fulfill the demands, consequence
thereto filing this civil suit which suffers from disputed question of
fact and legal infirmity. Therefore, it is apparent that the Civil suit
filed by the plaintiffs is totally misconceived and also suffers from
disputed question of fact which is without any substance of merit.
6. It has further argued that Nagar Palika/Nigam, Gwalior has
constructed the concrete road in the year of 2009/10 with the
collusion of local Parshad of the concerning ward without the
consent of the owner of survey number 33/2 i.e., the petitioner's
society. It is further contended that the developer of Garden homes
Society, i.e., respondent no. 7, has never constructed the road in
question, at the time of development. This fact was very well within
the knowledge of respondent no. 7, that, the survey no. 33/2 was in
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/26/2023
4:58:09 PM
the exclusive ownership of the Petitioner's society, for the road in
question, the petitioner/society has filed the Civil Suit No. 29-
A/2013 before the Civil Judge, Class II, which was decreed in
favour of petitioner/society, vide Judgment and decree dated
09.07.2013 (Annexure P/9). Being aggrieved with judgment and
decree, Municipal Cooperation, Gwalior, has filed First Appeal-60-
A/13, which was dismissed vide judgment dated 26.07.2014
(Annexure P/10), and no further appeal was filed by the Municipal
Cooperation, Gwalior, therefore the judgment has attained finality.
7. It is further argued that before sometime for the cause raised
in this civil suit some of the individuals filed another petition which
was registered as WP No.19614/2020 by the resident of Garden
Homes, which is regarding the same subject matter, claiming the
easementary right over the road in question, which is still pending
before this Court. Moreover, no interim relief was granted by this
Court, but First Appellate Court passed the impugned order without
going through the material available on record. Once the individuals
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/26/2023
4:58:09 PM
has failed to get any relief from this Court, then the other members
of the same society has filed this civil suit by suppressing these
material facts. Thus, it is apprehended that the suit is totally
misconceived and is liable to be dismissed.
8. It is further argued that, the road in question which is not the
part of survey no. 245, wherein Garden Homes is constructed, and
way for ingress and egress has already in existence, which is the
passage for Garden Homes Phase 1 through Phase 2, there is no
easementary right accrued in favour of the plaintiffs, as alternative
passage has already been provided by respondent no. 7. Hence the
impugned order is not sustainable in eyes of law and is liable to
dismiss in the interest of justice.
9. It is further submitted that the plaintiffs have an alternative
passage to reach the main road through Garden Homes Phase II,
which has been constructed in the year of 2000, since the Garden
Homes was constructed, it is further submitted that the permission
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/26/2023
4:58:09 PM
was granted by the town and country planning and Nagar Nigam
Gwalior, in favour of the petitioner, are according to law, virtually
the layout plan of Garden Homes Phase 1 has been obtained by
misleading the TNCP Gwalior, which is not sustainable in eyes of
law. In such circumstances, the order passed by the learned First
Appellate Court deserves to be set aside and the application filed by
the plaintiffs/respondents under Order XXXIX Rule 1 and 2 of CPC
also deserves to be set aside and affirmed the order passed by the
learned trial Court in the interest of justice.
10. On the other hand, learned counsel for the
respondents/plaintiffs submitted that the impugned order is in
accordance with settled principle of law and need not to be
interfered with. It is further argued that in earlier civil suit No. 29-
A/2012, respondents were not arrayed as party and therefore, the
judgment and decree is not binding upon them. Learned trial Court
has failed to consider that in 2012 sanctioned road map was
mentioned. It is further submitted that there was no pleading with
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/26/2023
4:58:09 PM
respect to alternate road/way.
11. Heard the learned counsel for the parties and perused the
record.
12. From the averments made by the both parties as above, it is
seen that the plaintiffs are claiming easementary rights over the
disputed road and the same is the subject matter of evidence and for
which ownership is not required. The learned first appellate Court,
on the basis of material available on record, has rightly observed
that the alternate road was closed eby a gate. The disputed road had
already existed before filing of this suit. In previous civil suit the
plaintiffs/respondents and the Swastik Grah Nirman Sahkari Samiti,
Maryadit were not the parties. The material on record also reveals
that in the layout plan of Swastik Grah Nirman Sahkari Samiti,
Maryadit, which was approved by the Competent Authority on
02.02.2000, the said road had been sanctioned. Therefore, at this
stage, if the road is removed or dismantled and new construction is
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/26/2023
4:58:09 PM
made on disputed area, then respondents/plaintiffs would not have
any alternate road and this would cause more inconvenience to
them in comparison to the petitioner/defendant. Dismantling of road
and new construction on the disputed area during the pendency of
the suit would also have financial impacts. In view of the above,
this Court is of the considered opinion that the learned first
appellate Court has rightly set aside the order passed by the learned
trial Court and directed the parties to maintain the status quo during
the trial.
13. Consequently, present petition is hereby dismissed.
(Sunita Yadav)
Judge
LJ*
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/26/2023
4:58:09 PM
