Madhya Pradesh High Court
Omprakash @ Anari Ahirwar vs Rajabhaiya on 13 February, 2023
Author: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 13 th OF FEBRUARY, 2023
MISC. PETITION No. 856 of 2022
BETWEEN:-
1. OMPRAKASH @ ANARI AHIRWAR S/O LATE SHRI
DHANIRAM AHIRWAR, AGED ABOUT 45 YEARS,
OCCUPATION: FARMER R/O VILLAGE GAURGAYE
TAHSIL AND DISTRICT CHHATARPUR M.P.
(MADHYA PRADESH)
2. SURENDRA @ SUMMI AHIRWAR S/O LATE SHRI
DHANIRAM AHIRWAR, AGED ABOUT 53 YEARS,
OCCUPATION: FARMER R/O VILLAGE-
GAURGAYE, TEHSIL AND DISTRICT-
CHHATARPUR(M.P.) (MADHYA PRADESH)
3. RAMPRAKASH @KAJU AHIRWAR S/O LATE SHRI
DHANIRAM AHIRWAR, AGED ABOUT 42 YEARS,
OCCUPATION: FARMER R/O VILLAGE-
GAURGAYE, TEHSIL AND DISTRICT-
CHHATARPUR(M.P.) (MADHYA PRADESH)
4. SHYAMLAL @ JHUTHA AHIRWAR S/O LATE SHRI
DHANIRAM AHIRWAR, AGED ABOUT 40 YEARS,
OCCUPATION: FARMER R/O VILLAGE-
GAURGAYE, TEHSIL AND DISTRICT-
CHHATARPUR(M.P.) (MADHYA PRADESH)
5. RATANLAL AHIRWAR S/O LATE SHRI DHANIRAM
AHIRWAR, AGED ABOUT 38 YEARS, OCCUPATION:
FARMER R/O VILLAGE-GAURGAYE, TEHSIL AND
DISTRICT-CHHATARPUR(M.P.) (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SOURABH SINGH THAKUR - ADVOCATE)
AND
1. RAJABHAIYA S/O SHRI THAKURPRASAD KHARE,
AGED ABOUT 80 YEARS, OCCUPATION: NIL R/O
VILLAGE DHAMOURA TAHSIL AND DISTRICT
CHHATARPUR M.P. (MADHYA PRADESH)
Signature Not Verified
Signed by: NAVEEN
NAGDEVE
Signing time: 2/17/2023
11:40:10 AM
2
2. STATE OF M.P. THROUGH THE COLLECTOR
DISTRICT-CHHATARPUR(MP) (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SWAPNIL GANGULY - DEPUTY ADVOCATE GENERAL WITH
SHRI RAJESHWAR RAO, GOVERNMENT ADVOCATE & SHRI VINAY
DWIVEDI, SDO, CHHATARPUR FOR RESPONDENT NO.2.)
(MS. DR. RASHMI PATHAK - ADVOCATE FOR INTERVENOR)
This petition coming on for admission this day, th e court passed the
following:
ORDER
1. The petitioner has filed this petition assailing the order dated
19/01/2022 contained in Annexure P-6 passed in MCA No. 15/2021 by
Principal District Judge, Chhatarpur and also the order dated 16/03/2021
contained in Annexure P-5 passed in C.S. No. 11-A/2020 by 3rd Civil Judge
Class II, District Chhatarpur.
2. Counsel for the petitioners/plaintiffs contends that a suit has been filed
by the present petitioners/plaintiffs before the trial court for declaration and
permanent injunction. In the plaint it is averred by the plaintiffs that the land
situate on various khasra nos. which are detailed in paragraph 1 of the plaint
were recorded in the name of Jagan Nath Kayastha. Later on after his death,
nephew of Jagan Nath namely Raja Bhaiya Khare was recorded in the record as
Bhoomi Swami and Raja Bhaiya Khare sold the property described in para 1 of
the plaint to the father of the plaintiffs Dhaniram Ahirwar and Nathu Ram Soni
and others. Later on petitioners on 18/08/2020 were tried to be ousted from the
land in question by the employees of defendant no.2 on the ground that land
was recorded as a government land therefore, the petitioners/plaintiffs filed a
suit. Alongwith the plaint, an application under Order 39 Rules 1 and 2 of CPC
Signature Not Verified
Signed by: NAVEEN
NAGDEVE
Signing time: 2/17/2023
11:40:10 AM
was filed by the plaintiffs. The said application was rejected vide order dated
16/03/2021. Assailing the order dated 16/03/2021 the present
petitioners/plaintiffs preferred an appeal before the lower appellate court. The
lower appellate court also vide order dated 19/01/2022 has dismissed the
appeal.
3. Counsel for the petitioners contends that the courts below have failed
to appreciate that the plaintiffs are in possession of the property. The courts
below have also further failed to appreciate that there is a sale deed contained in
Annexure P-2 which was executed in favour of the father of the plaintiffs. It is
also contended by the counsel that in the Rin Pustika the name of the plaintiffs
were recorded and accordingly there was prima facie case in favour of the
plaintiffs. It is contended by the counsel that other two ingredients i.e. balance
of convenience as well as irretrievable injury were also in favour of the plaintiffs
and thus, both the courts below fell in error while declining the application of
the petitioners under Order 39 Rules 1 and 2 of CPC. Counsel for the
petitioners has placed reliance on Satish Kumar Vs. Rajendra Jain, 2015 (2)
MPLJ 181, Munni Devi Vs. Sambhu Singh, 2017 (2) MPLJ 366 and
Seema Chouksey V. Dinesh Kumar, 2019 (4) MPLJ 393.
4. Per contra, counsel for the State Shri Swapnil Ganguly submits that in
the present case the petitioners have not approached the court with clean hands
inasmuch as the land in question is a government land and Naib Tahsildar,
Chhatarpur vide an order dated 3/03/1986 held that the land in question is
recorded as "Gair Haqdaar". The Naib Tahsildar also observed that the land in
question is a government land and the government have made huge expenditure
towards construction of pond on the land, accordingly, declared the land to be
government land and Raja Bhaiya Khare was treated to be an encroacher. The
Signature Not Verified
Signed by: NAVEEN
NAGDEVE
Signing time: 2/17/2023
11:40:10 AM
said order though was initially challenged before the Sub Divisional Officer and
Sub Divisional Officer set aside the order vide order dated 12/12/1998 but later
on Sub Divisional Officer vide order dated 30/09/1997 recalled its earlier order
and affirmed the order of Tahsildar dated 3/03/1986. Counsel also contends
that one Yogendra Pratap Tiwari assailed the said order in respect of his share
in the property and then after remand of the case, the Additional Commissioner
vide his order dated 6/12/2013 issued direction for recording of the name of
Yogendra Pratap Tiwari as regard khasra no. 400 area 1.932 hectares but the
Additional Commissioner did not interfere with the remaining order of Tahsildar
dated 3/03/1986. It is also contended by Shri Ganguly that Yogendra Pratap
Tiwari has filed a suit before the trial court and the said suit was decreed vide
judgment dated 15/06/2022. The said judgment is under challenge in appeal
before the District Judge, Chhatarpur in RCA No. 35/2022. Shri Ganguly
contends that court below did not commit any error in dismissing the
application filed by the petitioners for grant of temporary injunction. It is
contended by the counsel that in view of the law laid down by this Court in
S.A. No. 3076/2018 (Atar Singh Vs. The State of Madhay Pradesh), the
plaintiffs are not entitled for any interim relief.
5. Heard the submissions and perused the record.
6. In the present case the plaintiffs have asserted in the plaint that the
land in question was purchased by their father from Raja Bhaiya Khare who was
nephew of one Jagan Nath Kayastha. According to paragraph 1 of the plaint,
Jagan Nath Kayastha was owner of the land detailed in paragraph 1 of the
plaint. It is also averred therein that Jagan Nath Kayastha died without leaving
behind any legal heir and the same were inherited by Raja Bhaiya Khare being
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Signed by: NAVEEN
NAGDEVE
Signing time: 2/17/2023
11:40:10 AM
his nephew and the entire plaint is supported by a sale deed which has been
brought on record as Annexure P-2. The trial court while dealing with the
plaintiffs' application under Order 39 Rules 1 and 2 of CPC observed that
plaintiffs have produced on record Bhoo Adhikar and Rin Pustika which was
prepared in the name of their father but in any of the khasra panchshala the
name of the plaintiffs are not recorded nor any documents have been produced
on record by the plaintiffs to demonstrate that after execution of the sale deed,
name of father of the plaintiffs i.e. Dhaniram Ahirwar was recorded in the
records. Accordingly, the trial court has rejected the application. The lower
appellate court has also upheld the order passed by the trial court. The lower
appellate court in para 9 of its order observed that the possession on the land is
only being claimed on the basis of Rin Pustika and no documents have been
placed on record by the plaintiffs in order to substantiate their right,
accordingly, has dismissed the appeal.
7. A perusal of order dated 3/03/1986 contained in Annexure R-9
reflects that the said order was passed by the Naib Tahsildar in respect of the
property in question. In the said case, Raja Bhaiya and one Vishnu Prasad S/o
Bhagwan Das were party. The said order was assailed by Raja Bhaiya and
Vishnu Prasad initially by filing an appeal. The said appeal was allowed vide
order dated 12/12/1988. Thereafter, the said order was recalled by the Sub
Divisional Officer and order of Naib Tahsildar dated 3/03/1986 was restored.
The said order dated 30/09/1997 was assailed by Raja Bhaiya before any other
authority is not the case of the plaintiffs. The plaintiffs in the entire plaint have
not even whispered about the order dated 3/03/1986 and also the order dated
30/09/1997 passed by Naib Tahsildar and Sub Divisional Officer respectively.
A perusal of the order of Naib Tahsildar as well as Sub Divisional Officer
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Signed by: NAVEEN
NAGDEVE
Signing time: 2/17/2023
11:40:10 AM
reflect that land in question was recorded as "Gair Haqdaar" and as the land
was being used for a pond, there could not have been conferment of right of
Bhoomi Swami. As discussed above, Raja Bhaiya Khare despite being a party
in the said order had not assailed the said order. Even in respect of one of the
khasra number when one Yogendra Pratap Tiwari agitated his grievance, though
khasra no. 400 area 1.932 hectare was directed to be recorded in his name, but
the initial order of Naib Tahsildar dated 3/03/1986 was not interfered with.
8. Accordingly, the aforesaid facts reveal that the court below has
rightly concluded that plaintiffs failed to make out a prima facie case in their
favour and thus were not entitled for grant of temporary injunction. The
judgment relied upon by the counsel for plaintiffs are distinguishable on facts.
9. Thus, in the considered view of this Court, the trial court as well as
lower appellate court have not committed any error while passing the impugned
order. Accordingly, present petition stands dismissed.
No order as to costs.
(MANINDER S. BHATTI)
JUDGE
navin
Signature Not Verified
Signed by: NAVEEN
NAGDEVE
Signing time: 2/17/2023
11:40:10 AM
