Rammani Kushwaha vs Vinayak Prasad Kotwar
2023 Latest Caselaw 4991 MP

                            1              M.P. No.2332/2022


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 28th OF MARCH, 2023
              MISC. PETITION No. 2332 of 2022
BETWEEN:-

1.   RAMMANI     KUSHWAHA     S/O  SHRI
     SOBHNATH KUSHWAHA, AGED ABOUT 51
     YEARS, OCCUPATION: CULTIVATION, R/O
     VILAGE HARIHARPUR, TEHSIL- HUZUR,
     DISTRICT- REWA (MADHYA PRADESH)



2.   MOTILAL    KUSHWAHA     S/O   SHRI
     SOBHNATH KUSHWAHA, AGED ABOUT 46
     YEARS, OCCUPATION: CULTIVATION, R/O
     VILLAGE HARIHARPUR, TAHSIL HUZUR,
     DISTRICT REWA (MADHYA PRADESH)



3.   SATYANARAYAN KUSHWAHA S/O SHRI
     SOBHNATH KUSHWAHA, AGED ABOUT 44
     YEARS, OCCUPATION: CULTIVATION R/O
     VILLAGE HARIHARPUR, TAHSIL HUZUR,
     DISTRICT REWA (MADHYA PRADESH)



4.   RAJMANI    KUSHWAHA     S/O   SHRI
     RAMGARIB KUSHWAHA, AGED ABOUT 76
     YEARS, OCCUPATION: CULTIVATION, R/O
     VILLAGE HARIHARPUR, TAHSIL HUZUR
     DISTRICT REWA (MADHYA PRADESH)



5.   SHAYAMLAL KUSHWAHA S/O SHRI
     RAMGARIB KUSHWAHA, AGED ABOUT 66
     YEARS, OCCUPATION: CULTIVATION, R/O
     VILLAGE HARIHARPUR, TAHSIL HUZUR,
     DISTRICT REWA (MADHYA PRADESH)
                                   2                    M.P. No.2332/2022



6.   RAMPRAKESH KUSHWAHA S/O SHRI
     RAMGARIB KUSHWAHA, AGED ABOUT 63
     YEARS, OCCUPATION: CULTIVATION, R/O
     VILLAGE HARIHARPUR, TAHSIL HUZUR
     DISTRICT REWA (MADHYA PRADESH)


                                                       .....PETITIONERS
(NONE)

AND

VINAYAK PRASAD KOTWAR S/O SHRI MOLLAI
KOTWAR, AGED ABOUT 73 YEARS, R/O
VILLAGE HARIHARPUR, POLICE STATION
SAGRA, TEHSIL HUZUR, DISTRICT- REWA
(MADHYA PRADESH)


                                                      .....RESPONDENTS
(NONE)
      This petition coming on for admission this day, the court passed the

following:



                                JUDGMENT

On a call given by the State Bar Council of M.P. the lawyers are abstaining from work in spite of letter dated 22.3.2023, issued by the Bar Council of India thereby requesting the State Bar Council of M.P. to follow the various dictums passed by the Supreme Court from time to time in respect of strike.

2. The Division Bench of this Court by order dated 24.03.2023 passed In Reference (Suo Moto) Vs. Chairman, State Bar Council of M.P. & others (W.P. No.7295/2023) has issued following directions:

(i) All the advocates throughout the State of Madhya Pradesh are hereby directed to attend to their court work forthwith. They shall represent their clients in the respective cases before the respective courts forthwith;

(ii) If any lawyer deliberately avoids to attend the court, it shall be presumed that there is disobedience of this order and he will be faced with serious consequences including initiation of proceedings for contempt of court under the Contempt of Courts Act;

(iii) If any lawyer prevents any other lawyer from attending the court work, the same would be considered as disobedience of these directions and he will be faced with serious consequences including initiation of proceedings under the Contempt of Courts Act;

(iv) Each of the judicial officers are directed to submit a report as to which lawyer has deliberately abstained from attending the court;

(v) The judicial officers shall also mention the names of advocates who have prevented other advocates from entering the court premises or from conducting their cases in the court;

(vi) Such advocates shall be dealt with seriously which may even include proceedings under the Contempt of Courts Act as well as being debarred from practice.

3. In spite of that Lawyers are abstaining from court work.

4. Under these circumstances, this Court has no other option but to issue notice to counsels for the petitioners as well as counsels for the respondent to show cause as to why contempt proceedings be not initiated against them for violating the order dated 24.03.2023 passed by Division Bench of this Court in the case of Chairman, State Bar Council of M.P and Others (supra).

5. Office is directed to register separate proceedings for the same.

6. This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order dated 04.05.2022 passed by the District Judge, Rewa, District Rewa in Miscellaneous Appeal No.101/2021 arising out of order dated 27.09.2021 passed by 9th Civil Judge, Junior Division, Rewa in Civil Suit No. 325-A/2020 by which a temporary injunction has been granted against the petitioners.

7. The facts necessary for disposal of the present petition, in short, are that the respondent/plaintiff has filed a suit for permanent injunction for restraining the petitioners/defendants from interfering with the plaintiff's possession over land bearing Old Khasra No.760 (New No. 760/1/1), area 0.007 hectares, Khasra No.760/1/2, area 0.007 hectares, Khasra No.760/2, area 0.101 hectares, Khasra No. 760/1/3, area 0.006 hectares situated at Village Hariharpur, Tehsil Huzur, District Rewa.

8. It is the case of the plaintiff that the plaintiff had filed a Civil Suit No.226-A/1989 which was dismissed by 2nd Civil Judge Class-II, Rewa by judgment and decree dated 24.11.1992. Against the said judgment and decree, the plaintiff preferred an appeal which was registered as RCA No.41A/1992 and a decree for possession was passed by judgment and decree dated 08.11.1994 and the judgment and decree passed by the trial Court was set aside.

9. The petitioners preferred a Second Appeal No.688/1994 which was dismissed by order dated 09.02.2011. Accordingly, the possession was delivered to the petitioners on 27.08.2015 in execution of the judgment and decree passed by the Civil Court. Accordingly, the respondent started cultivating the land in dispute.

10. It is the case of the plaintiff that the petitioners in a clandestine manner have got their names mutated in respect of the land in dispute and they are interfering with the possession of the plaintiff.

11. The petitioners filed their written statement and denied that the possession was ever delivered to the petitioners in execution of any decree. On the contrary, it was claimed that the land in dispute is the ancestral property of the defendant Nos. 1 to 6 and they are in continuous possession of the same.

12. The plaintiff also filed an application under Order 39 Rule 1 and 2 C.P.C. which was duly opposed by the petitioners.

13. The trial Court by order dated 27.09.2021 has held that the petitioners have not filed any document to show that even after the execution of the decree, how they succeeded in getting their names mutated in respect of the land in dispute. Under these circumstances, the trial Court issued a temporary injunction against the petitioners thereby restraining them for interfering with the peaceful possession of the plaintiff either by themselves or through their agents or servants etc. and it was directed that the temporary injunction shall continue for a period of one year and during this period the plaintiff must produce his evidence and in case if any delay tactics is adopted by the plaintiff, then temporary injunction shall be vacated.

14. Being aggrieved by the order passed by the trial Court, the petitioners preferred an appeal which too has been dismissed by the impugned order.

15. In the grounds raised in the writ petition, it is nowhere claimed that the plaintiff was never placed in possession in execution of a decree passed in his favour in an earlier suit. On the contrary, the only ground which has been raised is that since the petitioners were not a party in the earlier suit, therefore, the said judgment and decree is not binding.

16. This Court at the stage of grant of temporary injunction is required to consider as to who is in possession of the property in dispute. The delivery of possession to the plaintiff in execution of a decree has not been disputed by the petitioners in the writ petition. The petitioners are heavily relying upon the Khasra Panchshala. However, the same cannot be given preference over and above the decree passed by the Civil Court as well as the execution order of the same.

17. Since, the plaintiff is in possession of the land in dispute and there is nothing in the writ petition to indicate that the concurrent finding of fact recorded by the Courts below are perverse, this Court is of the considered opinion that no case is made out warranting interference.

18. Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE ashish

ASHISH KUMAR LILHARE 2023.04.01 17:08:26 +05'30'