Jaswant Singh S/O Late Shri Sardar ... vs Smt Kamladevi
2023 Latest Caselaw 12316 MP

                                                               1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT GWALIOR
                                                         FA No. 869 of 2023
                               (JASWANT SINGH S/O LATE SHRI SARDAR SINGH (DIED) THROUGH LEGAL HEIRS (1A) SMT
                                           SHANTIDEVI AND OTHERS Vs SMT KAMLADEVI AND OTHERS)

                          Dated : 02-08-2023
                                Mr. N.K.Gupta, Senior Advocate assisted by Ms. Rashi Kushwah,

                          Advocate for the appellants.
                                Mr. Sameer Kumar Shrivastava, Advocate for the respondents.

Heard on I.A. No. 1728 of 2023, an application under Order 39 Rule 1 and 2 of CPC filed by the appellants.

Above application has been filed stating therein that appellants / plaintiffs have filed this first appeal under Section 96 of CPC and in view of the grounds mentioned in the memo of appeal, appellants hope to succeed therein. Learned counsel for the appellants have submitted that the appellants are in possession of the land in dispute and during trial, possession of the appellants / plaintiffs was protected but because of the dismissal of the suit by learned trial Court ignoring the vital piece of evidence, now the defendants are trying to interfere in the possession. If the possession of the plaintiffs are disturbed, plaintiffs will suffer irreparably and more complications would arise. It is further submitted

that there is a prima facie case in favour of the appellants / plaintiffs and balance of convenience also lies in their favour, therefore, this application be allowed and respondents / defendants be restrained from interfering in the possession of the appellants on the land in dispute and direction to maintain status quo be given till final outcome of the present first appeal.

On the other hand, learned counsel for the respondents / defendants opposed the application and by filing reply through document No. 2098 of 2023 stated that the appeal filed by the appellants is meritless and deserves to be Signature Not Verified Signed by: ALOK KUMAR Signing time: 03-Aug-23 11:51:36 AM

dismissed under Order 41 Rule 11 of CPC. There is a specific finding recorded by learned trial Court that the disputed property has not been purchased by the plaintiffs and in fact the sale deed on which the plaintiffs are placing reliance is of another land. Nothing has been pleaded by the appellants as regards to prima facie case. Only requirement has been pleaded but the corroborating facts have not at all been pleaded. It is further submitted that the appellants are not law abiding citizens an after passing of impugned judgment by learned trial Court dismissing the suit filed by the appellants, they assaulted the respondents in brutal manner and consequently, case under Sections 307, 147, 148, 149 and 294 of IPC has been registered at Crime No. 325 of 2023 at Police Station -

Kotwali Morena, District Morena (M.P.). Under these circumstances, application (I.A. No. 1728 of 2023) be dismissed.

Heard learned counsel for the rival parties and perused the available record.

The perusal of statements of plaintiff witnesses Girraj Singh (PW-1), Sobran Singh (PW-2) and Keshav Singh (PW-3) reveal that they have failed to prove that the land in dispute shown in the plaint map was part of the land purchased in the year 1993 from Ashok Kumar Agrawal vide sale deed Ex.P-8. Learned trial Court has also not found the possession of the plaintiffs on the suit land. There is nothing on record to prove that the possession of the plaintiffs / appellants was protected during the trial. As discussed above, the plaint map does not match with the land described in Ex.P-8. It is well settled that plaintiff has to stand on his own legs not on the weakness of defendant.

Thus, no prima facie case is found in favour of the appellants / plaintiffs. Since possession of the plaintiffs on the suit land has not been found to be proved, balance of convenience and irreparable loss are not found in favour of Signature Not Verified Signed by: ALOK KUMAR Signing time: 03-Aug-23 11:51:36 AM

the appellant / plaintiffs as well.

Consequently, I.A. No. 1728 of 2023 is hereby dismissed. List the case for arguments on admission after three weeks.

(SUNITA YADAV) JUDGE

AKS

Signature Not Verified Signed by: ALOK KUMAR Signing time: 03-Aug-23 11:51:36 AM