Leeladhar Yadav vs Dr. Bada Saheb Ambedkar Grih ...
2023 Latest Caselaw 3263 MP

                                   1
 IN      THE      HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR
                          BEFORE
       HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                    ON THE 22 nd OF FEBRUARY, 2023
                    MISC. PETITION No. 1919 of 2020

BETWEEN:-
LEELADHAR YADAV S/O LATE CHHEDILAL YADAV,
AGED     ABOUT      58     YEARS, OCCUPATION:
AGRICULTURIST R/O 1790 OLD KANCHANPUR, BADA
SHANKAR JEE KA MANDIR, ADHARTAL JABALPUR
(MADHYA PRADESH)

                                                               .....PETITIONER
(BY SHRI R.P. KHARE - ADVOCATE)

AND
1.     DR. BADA SAHEB AMBEDKAR GRIH NIRMAN
       SAHAKARI SAMITI LTD. THR. ITS PRESIDENT
       SHRI LAXMIKANT TRIPATHI ADVOCATE 23312/1
       WRIGHT TOWN JABALPUR (MADHYA PRADESH)

2.     LAXMINARAYAN SHUKLA S/O LATE VIJAY
       SHANKAR SHUKLA, AGED ABOUT 42 YEARS, R/O
       NETA COLONY NEAR CHOUBE CHAKKI SUBHAS
       WARD   ADHARTAL,   JABALPUR    (MADHYA
       PRADESH)

                                                            .....RESPONDENTS
(BY SHRI LALMANI TRIPATHI - 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 25.02.2020 passed by 7th Additional Civil Judge, Class-II, Jabalpur in Civil Suit No.375-A/2019 by which an application filed by the petitioner under Section 10 of CPC for stay of Civil Suit

No.2892/2019 has been rejected.

2. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that the respondent No.1 had filed a suit for declaration of title as well as for possession on a part of land in dispute. It is the case of the plaintiff that the plaintiff had purchased Khasra No.189/8 area 6 acres for a consideration amount of Rs.3,60,000/- and after purchasing the land, the respondent No.1 became the owner and now the defendant No.1 therein/petitioner is trying to interfere with the possession. The petitioner also filed his counter claim in Civil Suit No.24A/2010. The said Civil Suit was dismissed by the judgment and decree dated 01.10.2016 and the counter claim

filed by the petitioner was decreed and it was held that the petitioner/defendant No.1 therein is the owner of Khasra No.189/6 situated in Katra Adhartal, District Jabalpur and it was also directed that the respondent No.1/plaintiff therein shall hand over the vacant possession of Khasra No.189/6 within a period of two months to the petitioner/defendant No.1 therein.

3. Being aggrieved by the said judgment and decree, the respondent No.1 has filed First Appeal No.801/2016, which is still pending.

4. Taking clue from certain observations made by the trial Judge in Civil Suit No.24A/2010, the present suit has been filed seeking permanent injunction against the respondents. While dismissing the Civil Suit No.24A/2010, the trial Court had come to a conclusion that the respondent No.1 is in possession of the land in dispute by virtue of an agreement to sale and in the light of Section 53A of Transfer of Property Act, the respondent No.1 is entitled to protect his possession and accordingly, the present suit has been filed.

5. The undisputed facts are as under:

1. The property is same.

2. The parties are same.

3 . The previous civil suit i.e. Civil Suit No.24A/2010 was filed for declaration of title and for possession of a part of disputed land i.e. Khasra No.189/6, whereas the declaration of title was sought in respect of the entire Khasra i.e. 189/8.

6. Undisputedly, a First Appeal is pending against the said judgment and decree, therefore, the property, which is in dispute in the present suit, is the subject matter of First Appeal No.806/2016. According to the trial Judge, the respondent No.1 is in possession by virtue of an agreement to sale. By the decree dated 01.10.2016, a decree for possession was also passed against the respondent No.1. If the petitioner is trying to interfere with the possession of the respondent No.1, then he has a remedy to move such application in the pending First Appeal but the multiplicity of suit cannot be permitted as the matter in issue was directly and substantially an issue in a previously instituted suit between the same parties and the said suit in the shape of First Appeal is pending before the High Court.

7. Accordingly, this Court is of the considered opinion that the trial Court committed a material illegality by rejecting the application filed under Section 10 of CPC.

8. As a consequence thereof, the application filed by the petitioner under

Section 10 of CPC is hereby allowed. The further proceedings in RCS A No.2892/2019 pending before the Court of 7th Additional Civil Judge, Class-II Jabalpur are hereby s ta ye d till the final disposal of the First Appeal No.801/2016.

9. Ex-consequenti, the order dated 25.02.2022 passed by 7th Additional Civil

Judge, Class-II Jabalpur in RCSA No.2892/2016 is hereby set aside.

10. The petition succeeds and is hereby allowed.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.02.22 17:29:55 +05'30'