Ashish Datt Pyasi vs Sushila Pyasi(Dead)
2023 Latest Caselaw 9681 MP

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IN    THE     HIGH COURT OF MADHYA PRADESH
                        AT JABALPUR
                            BEFORE
          HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                   ON THE 27th OF JUNE, 2023
                MISC PETITION No.1588 of 2022

BETWEEN:-

1.    ASHISH DATT PYASI, AGED ABOUT 51 YEARS,
      OCCUPATION CULTIVATION, R/O. HOUSE
      NO.1124, INDIRA GANDHI WARD, LAL HAVELI,
      GARHA, JABALPUR (M.P.)
2.    PRAVIN DATT PYASI, AGED ABOUT 44 YEARS,
      OCCUPATION CULTIVATION, R/O. HOUSE
      NO.1124, INDIRA GANDHI WARD, LAL HAVELI,
      GARHA, JABALPUR (M.P.)
3.    HARISH DATT PYASI, AGED ABOUT 42 YEARS,
      OCCUPATION CULTIVATION, R/O. HOUSE
      NO.1124, INDIRA GANDHI WARD, LAL HAVELI,
      GARHA, JABALPUR (M.P.)
4.    SAURABH DATT PYASI, AGED ABOUT 37 YEARS,
      OCCUPATION CULTIVATION, R/O. HOUSE
      NO.1124, INDIRA GANDHI WARD, LAL HAVELI,
      GARHA, JABALPUR (M.P.)


                                                 ....PETITIONERS/
                                                     PLAINTIFFS
(BY SHRI K.K. PANDEY - ADVOCATE)

AND

1.    ASHOK PYASI, AGED ABOUT 52 YEARS, S/O.
      LATE RAVISHANKAR PYASI, R/O. 1201, IN
      FRONT OF VIKAS COACHING, GAUTAM
      MADIYA, JABALPUR (M.P.)
2.    SUNIL PYASI, AGED ABOUT 44 YEARS, S/O.
      LATE RAVISHANKAR PYASI, R/O. 1201, IN
      FRONT OF VIKAS COACHING, GAUTAM
      MADIYA, JABALPUR (M.P.)
                                                                      2

3.          SANJAY PYASI, AGED ABOUT 41 YEARS, S/O.
            LATE RAVISHANKAR PYASI, R/O. 1201, IN
            FRONT OF VIKAS COACHING, GAUTAM
            MADIYA, JABALPUR (M.P.)
4.          STATE OF MADHYA PRADESH                                                THROUGH
            COLLECTOR, JABALPUR (M.P.)


                                                                                                            .....RESPONDENTS/
                                                                                                                  DEFENDANTS

(SHRI SANJAY AGRAWAL - SENIOR ADVOCATE WITH SHRI R.P. KHARE
AND SHRI ROHIT TANEJA - ADVOCATE FOR RESPONDENTS NO.1 TO 3-
THE CONTESTING RESPONDENTS)
............................................................................................................................................
Reserved on :                      14.06.2023
Pronounced on :                    27.06.2023
............................................................................................................................................
                       This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
                                                                    ORDER

Since pleadings are complete and parties agreed to argue the matter finally, therefore, looking to the issue involved in the matter, it is finally heard.

2. The petitioners have filed this petition under Article 227 of the Constitution of India questioning the legality, validity and propriety of orders dated 17.11.2021 (Annexure P/7) and 26.03.2022 (Annexure P/9).

3. To resolve the controversy, the facts of the case adumbrated in nutshell are:-

3.1 The petitioners/plaintiffs filed a suit for declaration of title, partition and permanent injunction in respect of land i.e. Khasra No. 205

area ad-measuring 2.200 hectares, Khasra No. 303 area ad-measuring 2.130 hectares, Khasra No. 334 area ad-measuring 2.180 hectares and Khasra No. 346 area ad-measuring 1.400 hectares situate at Village Mangeli, P.H. No.30, Revenue Circle No. Jabalpur-2 claiming 1/2 share in the property between plaintiffs and defendants and 1/4 share amongst the plaintiffs and injunction has also been claimed against the defendants (respondents herein) that they may not interfere in the property of the plaintiffs which comes in their share and also not disturb their possession over the same.

3.2. The copy of the plaint is available on record as Annexure P/1 filed along with the petition giving family tree in paragraph 1 showing that Late Ramdatt Pyasi had two sons namely Brahmdatt Pyasi and Ravishankar Pyasi. Brahmdatt Pyasi and his wife Vidya Bai Pyasi had five children namely Ashish Datt, Praveen Datt, Harish Datt, Saurabh Datt and Snehlata. The four sons are the plaintiffs/petitioners in the present petition. Similarly, Ravishankar Pyasi and his wife Sushila Pyasi had three children namely Ashok Pyasi, Sunil Pyasi and Sanjay Pyasi who are defendants no.2 to 4 in the present petition. Ramdatt Pyasi died in the year 1979 and his wife Sukhrani had also died whereas Bramhdatt Pyasi died in the year 2001 and Ravishankar Pyasi expired in the year 2010. In paragraph 3 of the plaint, it is described that Ramdatt Pyasi had parental property and after his death, Bramhdatt Pyasi; Ravishankar Pyasi and the legal heirs (plaintiffs and defendants no.2 to 4 herein) became the coparceners in the property. As per the pleading made in the plaint, the suit property was neither partitioned nor any family arrangement was made as to how the property of Ramdatt Pyasi would be maintained.

3.3. As per the allegations made in the plaint, though the land described in paragraph 3 of the plaint was joint Hindu Family Property and an agricultural land but defendants/respondents fraudulently prepared the partition deed dated 12.01.1972 but that partition deed was not binding upon the plaintiffs. The name of Ramdatt Pyasi was recorded in the revenue record but after his death, the land should have been recorded in the name of Brahmdatt Pyasi and Ravishankar Pyasi but on the basis of forged documents, Ravishankar Pyasi got his name mutated by deleting the name of Ramdatt Pyasi in the revenue record. Out of the said land, five acres of land was acquired for constructing National Highway-12 and almost Rs. 1 crore was paid to the respondents/defendants in lieu of acquisition as compensation and because of the acquisition, the land got reduced and the remaining land was further divided and battank got done and total rakba 5.120 remained over which plaintiffs have claimed their possession. Ramdatt Pyasi in his lifetime had not partitioned the property and also not made any family arrangement. Even no partition took place between plaintiffs and defendants. The defendants got fraudulently executed the partition deed dated 12.01.1972 but no mutation got done on the basis of that partition deed.

3.4. On the basis of aforesaid facts, plaintiffs have moved an application for grant of injunction and sought direction to maintain status-quo and also prayed that in the meantime, third party right may not be created.

3.5. The defendants denied the submissions made by the plaintiffs and took a stand that Brahmdatt Pyasi vide registered sale deed dated 25.09.1994 sold the land i.e. 31.52 acres to one Narsinghdas

which was again purchased by Chhedilal Pyasi, Ramdatt Pyasi and Sarman Pyasi from Narsinghdas and that land got partitioned vide partition deed dated 13.01.1972. Ravishankar Pyasi in the said Batwaranama got his share over khasra nos. 54, 90, 221, 259 and 91, total area 9.348 hectares. As per the defendants, Brahmdatt Pyasi had already been granted land prior to 1964 and 31 acres of land was given to him which was sold by him. The defendants no.1 to 4 (respondents no.1 to 4 herein) had already filed a suit for partition of agricultural land in which plaintiffs have not made any statement that the land situates at Mangeli is also part of Joint Family Property over which plaintiffs have their share. The said suit was partly decreed vide judgment and decree dated 28.04.2017 in which decree was granted to partition the land of Gram Nichi, Tehsil Patan, District Jabalpur. The defendants have also taken a stand that application filed by the plaintiffs under Order 39 Rules 1 & 2 CPC earlier got rejected by the Court and the provision of Order 39 Rule 4 under which application has been filed by the plaintiffs/petitioners is not applicable because in the existing situation, the said provision of Order 39 Rule 4 of CPC has no application and as such, they sought rejection of the application.

3.6. The trial Court vide order dated 17.11.2021 (Annexure P/7) rejected the application on the ground that the respective provision under which application has been moved is not applicable and in the existing situation, the said provision does not attract. The Court below has observed that the partition deed executed in the year 1972 which got registered and since 1980 the name of Ravishankar Pyasi got recorded in the revenue record. The plaintiffs filed the suit in the year 2015 and as such, the suit was hopelessly barred by time as the same has been filed after 25 years. The Court has also observed that the earlier application

which had been filed under Order 39 Rules 1 and 2 of CPC by the plaintiffs got rejected on 05.01.2018 as the plaintiffs did not disclose about the old khasra number of Survey No. 221 and neither any pleading was there nor any evidence was produced before the Court. The Court has further observed that if the land recorded in the name of defendants is being sold by them, nothing illegal, prima facie appears to be done if at all ultimately it is found illegal then Section 52 of Transfer of Property Act protects the right of person who is claiming title over the land and suit in this regard is pending. It was also observed by the trial Court that since 1980-81 till decision on the application as per the revenue record, defendants are in possession and recorded owners of the property and as such, it is not proper for the Court to grant injunction against these persons and, the application therefore, was rejected.

3.7 An appeal was preferred against the order dated 17.11.2021 and the appellate Court vide order dated 26.03.2022 dismissed the appeal observing therein that the plaintiffs/appellants failed to prove any documents showing that they are in possession of the property. The Court has also refused to grant any injunction observing that unless plaintiffs prove prima facie case in their favour, no injunction can be granted. The Court has found that plaintiffs failed to prove any documents indicating that they are in possession of the property and, therefore, the injunction cannot be granted and considering the fact that when any sale executed in respect of land for which suit for declaration is pending, such sale would be governed with the provision of Section 52 of the Transfer of Property Act, 1882.

4. Shri K.K. Pandey, learned counsel for the petitioners while arguing the matter has tried to establish that Brahmdatt Pyasi has never

executed any sale deed in relation to the land which is subject matter of the suit. The said sale deed is in relation to some other land and is being used by the respondents/defendants just to mislead the Court and when this fact came to the knowledge that Brahmdatt Pyasi executed the sale deed, a dispute took place between the other owners and finally with the consent it was decided to get the land back by way of registered sale deed. The sale deed dated 25.09.1964 since was difficult to cancel, therefore, instead of cancelling the same, it was decided to purchase the land and as such, with the consent of all the parties a sale deed was further executed on 21.07.1966 and the land was returned back to the elder brother of Brahmdatt Pyasi namely Chhedilal and uncle Sarvanlal Pyasi. Learned counsel has also filed an affidavit of Vidya Bai, wife of Late Brahmdatt Pyasi before this Court saying that her husband did not get any share in the property of his father and no partition took place between Brahmdatt Pyasi and his brothers. In the affidavit, it is further stated that 61 acres of land was sold by the sons of Sarvanlal Pyasi namely Swamidatt @ Suresh Pyasi, Dinesh, Umakant,Vishnu Pyasi and Ravishankar Pyasi.

5. Learned counsel for the petitioners/plaintiffs has placed reliance upon several judgments saying that in a suit for declaration, injunction restraining defendants to create any third party right can be granted. Relying upon the provision of Order 39 Rule 1 and 2 of CPC, he has placed reliance on a judgment of the Supreme Court reported in AIR 2005 SC 104 Maharwal Khewaji Trust (Regd.) Faridkot Vs. Baldev Dass wherein the Supreme Court in paragraph 10 has observed as under:-

"10. Be that as it may, Mr Sachar is right in contending that unless and until a case of irreparable loss or damage is made out by a

party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of the property by putting up construction as also by permitting the alienation of the property, whatever may be the conditions on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored."

Further, the Supreme Court in case of Makers Development Services Pvt. Ltd. Vs. M. Visvesvaraya Industrial Research and Development Centre reported in 2012 AIR SCW 107 in paragraph 6 has observed as under:-

"6. It is settled law that while passing an interim order of injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure,1908, the Court is required to consider three basic principles, namely, a) prima facie case, b) balance of convenience and inconvenience, and c) irreparable loss and injury. In addition to the above mentioned three basic principles, a court, while granting injunction must also take into consideration the conduct of the parties. It is also established law that the Court should not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequences depending upon the nature thereof and in dealing with such matters the court must make all endeavours to protect the interest of the parties."

6. Per contra, Shri Sanjay Agrawal, learned senior advocate for the respondents/defendants by submitting a reply has taken a stand therein that the suit property got purchased by Chhedilal Pyasi, Ramdutt Pyasi and Sarman Pyasi vide registered sale deed dated 01.10.1966 which was later on partitioned on 13.01.1972. As per the partition deed, suit land bearing Survey Nos. 54, 90, 221, 259 and 91, total area 9.348 hectares renumbered as Survey Nos.333, 334, 205 and 346 came into the share of Ravishankar Pyasi. Ravishankar Pyasi in his lifetime sold 4 acres of land by registered sale deed whereas 3.60 acres land was acquired by the State Government, compensation of the same was paid to the defendants in the year 2015 and the remaining land was also transferred by different sale deeds executed by the defendants. In the revenue record, land has been recorded in the name of Ravishankar Pyasi as exclusive owner and after his death in the year 2011, the name of present defendants/respondents were recorded in the revenue record. Learned senior counsel further submits that when earlier application filed by the plaintiffs under Order 39 Rules 1 & 2 of CPC got rejected by the Court on 05.01.2018 and that was not assailed by the plaintiffs further, the order has attained finality and, therefore, second application for injunction filed in the garb of Order 39 Rule 4 of CPC was not maintainable. He further submits that provision of Order 39 Rule 4 CPC does not apply and that application cannot be entertained by the Court as not tenable.

7. I have heard learned counsel for the parties and also perused the record.

8. I find substance in the submissions made by learned counsel for the respondents/defendants that provision of Order 39 rule 4 of CPC has no application and in fact that applicant was not maintainable. The

trial Court has also taken note of the said fact in its order and in paragraph 11 onwards, the scope of applying the respective provision has been considered and finally the Court has come to the conclusion that such provision is not applicable as there is no change noticed in the facts and circumstances of the case. Although as per counsel for the petitioners/plaintiffs, notice was published; sale deed got executed by the defendants and selling of land is a changed circumstance and under such a circumstance, application under Order 39 Rule 4 of CPC can be entertained but in my opinion, that was not the changed circumstance because earlier also the injunction was claimed by the plaintiffs to restrain defendants to create any third party right over the suit property but that relief was declined by the Court and again the same injunction was being claimed that too in the same existing situation. From perusal of the order deciding application filed by the plaintiffs on earlier occasion under Order 39 Rules 1 and 2 of CPC which got rejected vide order dated 05.01.2018 (Annexure P/3), it can be seen that though the relief asking injunction to create third party right or to sell the land in question was claimed but that has been rejected. Thus, under the aforesaid situation, the same relief which has been claimed by filing application under Order 39 Rule 4 of CPC has rightly been rejected by the Courts below.

9. So far as the judgments on which counsel for the petitioners/plaintiffs are placing reliance are concerned, they are not helpful for the petitioners/plaintiffs because nobody can dispute that injunction can be granted from creating any third party right in favour of the plaintiffs but that would be subject to fulfillment of required ingredients of granting injunction. In the present case, both the Courts have found that plaintiffs have failed to prove any prima facie case in

their favour, there is no irreparable injury caused to the plaintiffs in case injunction is not granted and as such balance of convenience is also not in their favour.

10. Although at this stage, Shri Pandey, learned counsel appearing for the petitioners/plaintiffs repeatedly claiming and suggesting the Court that the trial Court be directed to conclude the trial within a period of six months and till then status-quo be maintained. The suggestion prima facie appears to be very attractive and reasonable but in the existing circumstances when suit has been filed in the year 2015; application for granting injunction has already been rejected by the Court below; the plaintiffs failed to produce any material ingredients; finding of both the Courts below are against them; possession over the suit property was found in favour of the defendants/respondents by both the Courts below, then in my opinion, even for a single day, injunction cannot be granted. The petition is without any substance and is hereby dismissed.

11. However, the trial Court is directed to expedite the suit and make all endeavours to conclude the same as expeditiously as possible.

No order as to costs.

(SANJAY DWIVEDI) JUDGE

rao Digitally signed by SATYA SAI RAO Date: 2023.06.28 16:23:18 +05'30'