Madhya Pradesh High Court
Premlal Sahu vs The State Of Madhya Pradesh on 3 January, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 3 rd OF JANUARY, 2023
MISC. PETITION No. 2553 of 2021
BETWEEN:-
1. PREMLAL SAHU S/O LATE SHRI RAMDEV SAHU,
AGED ABOUT 67 YEARS, OCCUPATION:
AGRICULTURE, R/O VILLAGE GANIYARI, POST
BAIDHAN, P.S. BAIDHAN, TAHSIL SINGRAULI,
DISTRICT SINGRAULI (MADHYA PRADESH)
2. SMT. SEETADEVI SHAHWAL W/O SHRI
ATMACHARAN SHAN, AGED ABOUT 40 YEARS,
OCCUPATION: HOUSE WIFE, R/O VILLAGE
GANIYARI, POST BAIDHAN, P.S. BAIDHAN, TAHSIL
SINGRAULI, DISTRICT SINGRAULI (MADHYA
PRADESH)
3. JAWAHAR LAL SAHU S/O LATE SHRI RAMDEV
SAHU, AGED ABOUT 70 YEARS, OCCUPATION:
AGRICULTURE, R/O VILLAGE GANIYARI, POST
BAIDHAN, P.S. BAIDHAN, TAHSIL SINGRAULI,
DISTRICT SINGRAULI (MADHYA PRADESH)
4. MUS. BUDHNI WD/O VASHDHARI SAHU, AGED
ABOUT 70 YEARS, OCCUPATION: AGRICULTURE,
R/O VILLAGE GANIYARI, POST BAIDHAN, P.S.
BAIDHAN, TAHSIL SINGRAULI, DISTRICT
SINGRAULI (MADHYA PRADESH)
5. BABUA SAHU S/O LATE SHRI VANSHDHARI SAHU,
AGED ABOUT 45 YEARS, OCCUPATION:
AGRICULTURE, R/O VILLAGE GANIYARI, POST
BAIDHAN, P.S. BAIDHAN, TAHSIL SINGRAULI,
DISTRICT SINGRAULI (MADHYA PRADESH)
6. CHHOTE SAHU S/O LATE SHRI VANSHDHARI
SAHU, AGED ABOUT 45 YEARS, OCCUPATION:
AGRICULTURE, R/O VILLAGE GANIYARI, POST
BAIDHAN, P.S. BAIDHAN, TAHSIL SINGRAULI,
DISTRICT SINGRAULI (MADHYA PRADESH)
.....PETITIONERS
Signature Not Verified
Signed by: ANIL
CHOUDHARY
Signing time: 1/6/2023
10:33:51 AM
2
(BY SHRI HITENDRA GOLHANI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.
COLLECTOR, DISTRICT SINGRAULI (MADHYA
PRADESH)
2. STATE OF M.P. THR. PRINCIPAL SECRETARY,
SCHOOL EDUCATION DEPARTMENT, VALLABH
BHAWAN, BHOPAL, DISTRICT BHOPAL (MADHYA
PRADESH)
3. DISTRICT EDUCATION OFFICER, DISTT.
SINGRAULI (MADHYA PRADESH)
4. SINGRAULI NAGAR PALIKA NIGAM THR. ITS
COMMISSIONER, NAGAR PALIKA NIGAM HEAD
OFFICE, BAIDHAN, DISTRICT SINGRAULI
(MADHYA PRADESH)
5. DEPUTY COMMISSIONER, NAGAR PALIKA
NIGAM HEAD OFFICE BAIDHAN, DISTRICT
SINGRAULI (MADHYA PRADESH)
6. SANTLAL SAHU S/O VANSHDHARI SAHU, AGED
ABOUT 37 YEARS, OCCUPATION: BUSINESS,
VILLAGE GANIYARI, POST BAIDHAN, P.S.
BAIDHAN, TAHSIL SINGRAULI, DISTRICT
SINGRAULI (MADHYA PRADESH)
.....RESPONDENTS
(SHRI DARSHAN SONI - GOVERNMENT ADVOCATE FOR RESPONDENT
NOS.1 TO 3/STATE)
(SHRI SHEETAL TIWARI - ADVOCATE FOR RESPONDENT NOS.4 & 5)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Nobody is appearing for respondent No.6. In fact, respondent No.6 in
the present case is not considered to be a necessary or formal party, therefore,
this petition can be decided even in absence of representation of respondent
No.6.
The petitioners have filed this petition under Article 227 of the
Signature Not Verified
Signed by: ANIL
CHOUDHARY
Signing time: 1/6/2023
10:33:51 AM
Constitution of India questioning the validity of order dated 04.08.2021
(Annexure-P/10) passed by the 5th Additional District Judge, Waidhan, District
Singrauli in Miscellaneous Civil Appeal No.14/2020 whereby the appeal
preferred by the plaintiffs/petitioners has been rejected.
A suit has been filed by the plaintiffs/petitioners for declaration of title,
permanent injunction and also for possession over the land which is said to
have been encroached by the respondents dispossessing the
plaintiffs/petitioners.
In a pending civil suit, an application under Order 39 Rule 1 & 2 of the
Code of Civil Procedure has been filed claiming injunction against respondent
Nos.1 to 3 that they may not disturb the possession of the plaintiffs/petitioners
and also sought injunction restraining the said respondents to raise any
construction over the land which according to the plaintiffs/petitioners belongs
to them but unauthorizedly occupied by respondent Nos.1 to 3.
The application filed by the plaintiffs/petitioners under Order 39 Rule 1 &
2 of CPC has been considered by the trial Court taking note of the reply
submitted by the defendants/respondents and an order dated 13.07.2020
(Annexure-P/7) has been passed rejecting the application holding therein that the
plaintiffs/petitioners failed to prove a prima facie case in their favour and
further no irreparable injury would cause if injunction is not granted and they
further failed to prove the balance of convenience in their favour.
The order passed by the trial Court has been assailed by filing an appeal
under Order 43 Rule 1 of CPC and the appellate Court vide impugned order
dated 04.08.2021 (Annexure-P/10) rejected the appeal affirming the order
passed by the trial Court on 13.07.2020. The appellate Court reiterated the same
Signature Not Verified
observation and finding given by the trial Court and has also observed that the
Signed by: ANIL
CHOUDHARY
Signing time: 1/6/2023
10:33:51 AM
plaintiffs/petitioners failed to prove a prima facie case and they also failed to
prove irreparable injury, if any, is caused to them if injunction is not granted and
balance of convenience is also not in their favour and as such, the finding given
by the trial Court has been affirmed by the appellate Court.
Learned counsel for the petitioners submits that the appellate Court
without application of mind has passed the impugned order and in fact it is
nothing but reiteration of facts and observation made by the trial Court and
nothing new has been added by the appellate Court and no ground has been
answered as has been raised by the plaintiffs/petitioners before the appellate
Court. He further submits that prima facie case is made out in favour of the
plaintiffs/petitioners because the land was allotted to them by way of patta
granted somewhere in the year 1935 and since then they have been in
possession over the land and as such, prima facie case is in their favour.
However, he submits that merely because the revenue entries got unilaterally
changed and the name of State is shown in the revenue records and as such,
allotment of the said land was made by the Collector in favour of School
Education Department in the year 2016 and on the basis of said allotment,
respondents Nos.1 to 3 started construction of a hostel over the land and,
therefore, he submits that the application for seeking injunction against
respondent Nos.1 to 3 ought to have been allowed by the trial Court but that
has not been done.
Shri Darshan Soni, learned Government Advocate appearing on behalf of
respondent Nos.1 to 3/State submits that the State has filed a reply to the
petition. He further submits that the findings given by both the Courts are on the
basis of material available and also on the basis of revenue entries by which it is
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Signed by: ANIL
CHOUDHARY
Signing time: 1/6/2023
10:33:51 AM
very categorically shown that respondent Nos.1 to 3 are in possession of the
land which was recorded in their name since 1976. He submits that under such
circumstances and even otherwise, the construction for which injunction is
being sought for is already over. Hostel building is also covered with boundary
wall from three sides and this fact can be easily gathered from the reply or the
material available on record. He submits that under such circumstances,
granting injunction at this stage would not be proper and if granted, that would
be against the settled norms of granting injunction because the possession of
the respondents is clear as they have already raised construction over the land
and occupied the building of hostel.
However, at this stage Shri Golhani submits that still the construction of
one side boundary is incomplete and that could be done or completed only
after demarcation of the house of the plaintiffs/petitioners. He submits that a suit
is pending and judgment will take time to be passed and if the house of the
plaintiffs/petitioners is demolished, the same would cause irreparable injury to
them. He submits that on the basis of photographs available on record, it can be
easily seen that the house of the plaintiffs/petitioners is very much there which
shows that they are in possession of the land and occupying the same since
long. As such, the balance of convenience is also in favour of the
plaintiffs/petitioners so as to protect their house by granting injunction.
Considering the submissions made by the counsel for the parties and
after perusal of record, I am of the opinion that the orders of the trial Court and
appellate Court do not specify as to whether prima facie case is in favour of
the plaintiffs/petitioners or not but still taking note of the situation which is
existing in this case, this petition can be disposed of directing respondent Nos.1
to 3, if construction including the boundaries is yet to be made, the same be
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Signed by: ANIL
CHOUDHARY
Signing time: 1/6/2023
10:33:51 AM
completed without demolishing the house of the plaintiffs/petitioners which is
existing adjoining to the land on which construction is being raised by the
respondents/State.
It is made clear that while completing the construction of boundary, the
respondents will take care of the fact that they would leave access to the house
of the plaintiffs/petitioners and also not demolish other infrastructure if any is
available like yard, trees, etc. Further, under the garb of order passed by this
Court, the plaintiffs/petitioners would not raise any new construction over there.
However, it is directed that the trial Court shall expedite the suit and
decide the same within a further period of six months from today.
With the aforesaid observations, this petition is disposed of.
Certified copy as per rules.
(SANJAY DWIVEDI)
JUDGE
ac/-
Signature Not Verified
Signed by: ANIL
CHOUDHARY
Signing time: 1/6/2023
10:33:51 AM
