Smt. Ekta Pathak vs Subodh Kumar Jaggi
2023 Latest Caselaw 2341 MP

                                       1
 IN      THE       HIGH COURT OF MADHYA PRADESH
                        AT JABALPUR
                          BEFORE
       HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                     ON THE 9 th OF FEBRUARY, 2023
                     MISC. PETITION No. 3458 of 2022

BETWEEN:-
1.     SMT. EKTA PATHAK W/O SHRI SUNIL KUMAR
       PATHAK, AGED ABOUT 42 YEARS, R/O 22,
       GROUND FLOOR ADARSH NAGAR, NARMADA
       ROAD JABALPUR (MADHYA PRADESH)

2.     SUNIL KUMAR PATHAK S/O LATE B.K. PATHAK,
       AGED ABOUT 47 YEARS, R/O 22, GROUND FLOOR,
       ADARSH NAGAR, NARMADA ROAD, JABALPUR
       (MADHYA PRADESH)

                                                                 .....PETITIONERS
(BY SHRI ABHIJEET AWASTHI - ADVOCATE )

AND
SUBODH KUMAR JAGGI S/O LATE SHRI RAMPRAKASH
JAGGI, AGED ABOUT 57 YEARS, OCCUPATION:
BUSINESS R/O 1043 SILVER CHOWK, NAPIER TOWN
COMPOUND, RUSSELL CHOWK, JABALPUR (MADHYA
PRADESH)

                                                               .....RESPONDENTS
(BY SHRI RAM BABU DUBEY - ADVOCATE )

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

This Miscellaneous Petition under Article 227 of the Constitution of India

has been filed against the order dated 12.07.2022 passed by 25th District Judge, Jabalpur in MCA No.10228/2021 by which an order of temporary injunction has been issued against the petitioners.

2. The facts necessary for disposal of the present petition in short are that the

plaintiff/respondent has filed a suit for declaration as well as permanent injunction on the ground that the brother of the plaintiff/respondent, namely; Late Vinod Kumar Jaggi had filed a civil suit No.196A/2001 in which it was claimed that the plaintiff and Late Vinod Kumar Jaggi are real brothers. Their mother Smt. Leelawati Jaggi by a registered sale deed dated 22.12.1980 had purchased a plot from Purusharth Cooperative Housing Society, Adarsh Nagar, Narmada Road, Jabalpur. The said civil suit was decreed by the judgment and decree dated 29.08.2003 and it was declared that the property in dispute is a joint property of Smt. Leelawati and her legal representatives. Against the said judgment and decree, the respondent filed Civil Appeal No.3A/2004, which was

dismissed by 6th Additional District Judge, Jabalpur. A Second Appeal was filed by the respondent, which was registered as S.A. No.931/2004, which was also dismissed by Judgment dated 23.11.2007 and thus, it was claimed that the respondent has been held to be a joint owner of the property in dispute i.e. house No.22 Plot No.22 Adarsh Nagar, Narmada Road Jabalpur alongwith Leelawati and other legal heirs. On 08.07.2020, the counsel for the respondent/plaintiff gave a notice to the defendant No.1 and accordingly, the plaintiff went to the house in accordance with the decree passed by the Court below. However, the defendant No.2, who is residing on the ground floor did not allow the plaintiff to enter inside the house and the plaintiff and his wife were

forcibly turned out of the house. It was claimed that the plaintiff has 1/3rd share in the house in question and he has a right to use the same and accordingly, the suit was filed for a declaration that the defendants be restrained from obstructing the plaintiff for visiting and using the house in question.

3. The plaintiff also filed an application under Order 39 Rule 1 and 2 CPC,

which was rejected by the trial Court.

4. Being aggrieved by the order passed by the trial Court, the plaintiff preferred an Appeal, which was registered as M.C.A 10228/2021. The said

Appeal has been allowed by order dated 12.07.2022 passed by 25th District Judge, Jabalpur and it has been directed that the defendants shall not restrain the plaintiff for visiting and using the house in question.

5. Challenging the order passed by the Appellate Court, it is submitted by the counsel for the petitioners that the counsel for the plaintiff had issued a notice dated 08.07.2020 in which it was specifically mentioned that because of certain differences between the plaintiff and his brother, namely; Late Vinod Jaggi, the plaintiff has left the house about 15 years back and now he is residing in a rented house. It is submitted that once the plaintiff himself has admitted that he is not in possession of the property in question, then by temporary injunction, he cannot be allowed take the possession of the land by permitting him to utilize the same.

6. Per contra, the petition is vehemently opposed by the counsel for the respondent. It is submitted that it is well established principle of law that every co-sharer shall be treated to be in possession of every inch of the joint property a n d since in a previously instituted suit, it has already been held that the plaintiff/respondent is not the exclusive owner but Smt. Leelawati and legal

representatives have equal share, therefore, it is clear that the plaintiff has 1/3rd share in the property and he cannot be restrained from enjoying the said property.

7. Heard the learned counsel for the parties.

8. The moot question for consideration is as to whether the plaintiff is in possession of the house in dispute or not ? The counsel for the plaintiff himself

has sent a notice dated 08.07.2020, Annexure P/4. Paragraph 2 of the said notice reads as under:

"2. That, my client had to leave the said house due to some differences cropped up between his brother namely Late Vinod Jaggi about 15 years ago and now my client is living in rented house."

9. Thus, it is clear that the plaintiff himself has admitted that he is not residing in the house in dispute for the last 15 long years. By issuing a temporary injunction, a co-sharer, who is not in actual possession, cannot be permitted to utilize the property in dispute specifically when no suit for partition and possession has been filed.

10. Under these circumstances, this Court is of the considered opinion that the Appellate Court committed a material illegality by issuing a temporary injunction against the petitioners.

11. As a consequence thereof, the order dated 12.07.2022 passed by 25th District Judge, Jabalpur in MCA No.10228/2021 is hereby set aside.

12. The petition succeeds and is hereby allowed.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.02.13 15:26:24 +05'30'