Madhya Pradesh High Court
Mohammad Arif vs The State Of Madhya Pradesh on 8 August, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 8 th OF AUGUST, 2023
MISC. PETITION No. 4414 of 2023
BETWEEN:-
MOHAMMAD ARIF S/O ABDUL RAZZAK, AGED ABOUT
35 YEARS, OCCUPATION SELF-EMPLOYED, R/O
VILLAGE CHARUVA, TAHSIL KHIRKIYA, DISTT. HARDA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI AVINASH ZARGAR - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR, HARDA, DISTT. HARDA (MADHYA
PRADESH)
2. SUB DIVISIONAL OFFICER KHIRKIYA, TAHSIL
KHIRKIYA, DISTRICT HARDA (MADHYA
PRADESH)
3. NAIB TAHSILDAR, TAHSIL KHIRKIYA DISTRICT
HARDA (MADHYA PRADESH)
4. VILLAGE PATWARI, VILLAGE KHIRKIYA, TAHSIL
KHIRKIYA, DISTRICT HARDA (MADHYA
PRADESH)
5. SARPANCH, GRAM PANCHAYAT CHARUVA
TAHSIL KHIRKIYA, DISTRICT HARDA (MADHYA
PRADESH)
6. SECRETARY, GRAM PANCHAYAT CHARUVA
TAHSIL KHIRKIYA, DISTRICT HARDA (MADHYA
PRADESH)
7. MOHAMMAD RAFIQ S/O MOHAMMAD SALIM
R/O VILLAGE CHARUVA, TAHSIL KHIRKIYA,
DISTRICT HARDA (MADHYA PRADESH)
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 8/10/2023
2:07:46 PM
2
.....RESPONDENTS
(BY SHRI SUBODH KATHAR - GOVT. ADVOCATE FOR RESPONDENTS
NO.1 TO 3)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This miscellaneous petition is filed being aggrieved of order dated
01/07/2023 passed by learned Principal District Judge, Harda in Miscellaneous
Civil Appeal No.MCA/1/2023 whereby petitioner's/plaintiff's miscellaneous
appeal seeking injunction is rejected and the order of learned Civil Judge Senior
Division, Khirkiya, Distt. Harda in RCS No.25A/2022 passed on 31/01/2023
refusing grant of injunction on the ground that petitioner is not in possession of
the suit land contained in Survey No.1/1.
2. Learned counsel for the petitioner has drawn attention of this Court to
the list enclosed by him as Annexure-P/5 in which name of the petitioner
appears at serial No.30 to point out that petitioner has been found to be eligible
for allotment of a plot on Aabadi Land, therefore, he should not have been
dispossessed from the suit land contained in Survey No.1/1 situated at Village
Charuva, Tahsil Khirkiya, Distt. Harda.
3. Reliance is placed on the judgment of Coordinate Bench of this High
Court in the case of Nagar Palika Parishad, Malajkhand Vs. Hindustan
Copper Ltd., Malajkhand Copper Project in Misc. Appeal
No.2315/2007 decided on 22/09/2008 reported in 2009 ILR (MP) 485 to
buttress the claim that a person in possession should not be disturbed because
the ratio of the law is that purpose of grant of ad-interim injunction is to
maintain and preserve the status-quo existing at the time of institution of
proceedings pending investigation.
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 8/10/2023
2:07:46 PM
4. Shri Subodh Kathar, learned Govt. Advocate, reading their reply before
trial Court submits that there is a specific denial in the reply to the possession of
petitioner on Survey No.1/1. It is pointed out that even in the list (Annexure-
P/5), it is not mentioned that petitioner is in possession of piece of land situated
at Survey No.1/1.
5. After hearing learned counsel for the parties and going through the
record, firstly petitioner is though claiming injunction in regard to land situated
in Survey No.1/1 but it is no where mentioned that plot mentioned in Annexure-
P/5 against the name of the petitioner at serial No.30 is contained in Survy
No.1/1. Trial Court has rightly mentioned that petitioner did not produce any
document to show that even name of his father was ever entered in the khasra
Khatoni. If petitioner is an encroacher, then his name would have been in
column-12 of the Khasra Khatoni for Survey No.1/1.
6. At this stage, Shri Zargar, learned counsel for the petitioner, submits in
para-8 of the trial Court judgment, this fact is mentioned.
7. When contents of para-8 of the trial Court's judgment are perused, then
it reveals that plaintiff had produced photocopy of Khasra Khatoni for the year
2020. Survey No.1/(B) is shown as Aabadi Land. For the year 2022-23
Khasra No.1/1/ (B) reveals that on 56 Sq. Meter possession is that of Suresh,
S/o Dayaram. Naib Tahsildar, Khirkiya had given notice to the petitioner for
causing illegal encroachment on Survey No.19 measuring 115 sq. meter. In that
regard, dispossession order was passed on 28/10/2022 from Survey No.19
measuring 115 sq.meter. Thus, it is evident that petitioner is not in possession
of Survey No.1/1 but is an encroacher on Survey No.19, therefore, petitioner's
contention that he being in possession of piece of land at Survey No.1/1, his
possession be protected, is not made out.
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 8/10/2023
2:07:46 PM
8. The ratio of the law down in case of Nagar Palika Parishad,
Malajkhand (supra) is that where defendants had themselves admitted
possession of the plaintiff on the suit property, then the Court should have
allowed the application for injunction. Reliance is placed on the judgment of
Supreme Court in Raptakos Brett & Com. Ltd. Vs. Ganesh Property,
(1998) 7 SCC 184 wherein it is held that lessee cannot be thrown out
physically by the landlord. In view of said decision, High Court passed order
i n Nagar Palika Parishad, Malajkhand (supra), but in the present case
there are no documents on record to show that petitioner is lessee of the State
Government, he is in possession of the land contained in Khasra No1/1,
therefore, merely mentioning his name in the list of persons entitled for allotment
of Aabad Land, will not create any equitable right in favour of the petitioner to
seek injunction in relation to Survey No.1/1 in regard to which neither prima
facie case could be proved nor balance of convenience. Therefore, there is no
error apparent in the impugned order calling for interference.
9. Accordingly, this petition fails and is hereby dismissed.
(VIVEK AGARWAL)
JUDGE
ts
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 8/10/2023
2:07:46 PM
