Moin Ansari vs Shreyansh
2023 Latest Caselaw 17674 MP

                                                         1
                          IN    THE      HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                   HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                           ON THE 25 th OF OCTOBER, 2023
                                           MISC. PETITION No. 3015 of 2023

                         BETWEEN:-
                         MOIN ANSARI S/O SHRI YASHIN ANSARI, AGED ABOUT
                         27 YEARS, OCCUPATION: LABOUR R/O THANA ROAD
                         KOTHI BAZAR DISTT. BETUL (MADHYA PRADESH)

                                                                                    .....PETITIONER
                         (BY SHRI SURYA PRATAP SINGH RAI - ADVOCATE)

                         AND
                         1.    SHREYANSH S/O SHRI RAJESH GOTHI, AGED
                               ABOUT 35 YEARS, R/O KESHAR BAGH CIVIL LINES
                               TAH. AND DISTT. BETUL (MADHYA PRADESH)

                         2.    MANGILAL S/O KESHRI CHAND GOTHI, AGED
                               ABOUT 72 YEARS, SARAFA BAZAR ETARASI
                               DISTT. (MADHYA PRADESH)

                         3.    MOHD. SALEEM S/O MOHD. GHEESHYA, AGED
                               ABOUT 55 YEARS, R/O THANA ROAD KOTHI
                               BAZAR DISTT. BETUL (MADHYA PRADESH)

                         4.    MOHD. SEENU S/O MOHD. GHEESHYA, AGED
                               ABOUT 57 YEARS, R/O THANA ROAD KOTHI
                               BAZAR DISTT. BETUL (MADHYA PRADESH)

                         5.    SABEENA   CHOUHAN      W/O    MUKARRAM
                               CHOUHAN, AGED ABOUT 50 YEARS, NEAR STATE
                               BANK MULTAI TAHSIL MULTAI DISTT. (MADHYA
                               PRADESH)

                                                                                 .....RESPONDENTS
                         (BY SHRI RAHUL DIWAKAR - ADVOCATE FOR RESPONDENT NO.1 AND
                         SHRI PRAKASH KUMAR GUPTA - ADVOCATE FOR RESPONDENT NO.4 &
                         5)

                               This petition coming on for admission this day, th e court passed the

Signature Not Verified
Signed by: ASTHA SEN
Signing time:
10/28/2023 1:38:19 PM
                                                              2
                         following:
                                                              ORDER

This petition has been filed by the petitioner assailing the order dated 18/05/2023 in M.C.A. No.25/2023 passed by Additional Judge to the Court of First Additional District Judge, Betul (Annexure P/1).

2. Learned counsel for the petitioner contends that the petitioner/plaintiff has filed a civil suit for declaration and permanent injunction against the respondents/defendants before the trial Court. The plaintiff has pleaded in the suit that one Mangilal Gothi was the owner of property in question. On 19/06/1968, Grand-Mother of the present petitioner/plaintiff purchased the said property from original owner Mangilal Gothi. Later on, a suit

regarding the said property was filed before the trial Court by one Birdi Chand Gothi and in the said suit Mangi Lal Gothi was one of the defendant. The said suit was decreed vide judgment and decree dated 23/10/2003. Thereafter, an appeal against the order passed by the trial Court was filed but the said appeal was dismissed and subsequently, a Second Appeal though filed before this Court, was later on withdrawn with liberty to the petitioner to file a suit on the basis of "will" which came into the notice of the petitioner on 10/01/2023. Accordingly, the present petitioner filed a suit before the trial Court along with an application under Order 39 Rule 1 & 2 of CPC. The trial Court allowed the said application vide order dated 29/04/2023. However, the said order has been reversed by the lower Appellate Court on an appeal preferred by the respondent Shreyansh Gothi.

3. Learned counsel contends that the order passed by the trial Court should not have been interfered with by the lower Appellate Court as the trial Court considered the fact that the sale-deed which was executed between Signature Not Verified Signed by: ASTHA SEN Signing time:

10/28/2023 1:38:19 PM

Mangilal and Shakur Bee was not amended by any of the authorities, thus concluded that the petitioner herein was entitled for an order of temporary injunction and accordingly, restrained the defendants from interfering with the property in question.

4. It is also contended by the counsel that paragraph 10 of the order of the trial Court reflects that the same was a well reasoned order and should not have been interfered with by the Lower Appellate Court. It is contended by the counsel that the Lower Appellate Court has proceeded to decide the appeal on the ground that the revenue authorities have acted upon the result of the litigation in earlier suit filed by Birdi Chand Gothi. It is therefore contended that impugned order passed by the lower Appellate Court deserves to be set aside.

5. Per contra, learned counsel for the respondent No.1 submits that the petition filed by the petitioner deserves to be dismissed inasmuch the lower Appellate Court has rightly considered the aspect that in the suit which was filed by Birdi Chand Gothi there was categorical findings by the trial Court that the plaintiff therein was owner and in possession of the property, accordingly, the defendants therein were directed to hand over the possession of the encroached part of property in question to the plaintiff therein.

6. The said decree has remained affirmed as subsequently appeals were dismissed. Therefore, submits that in terms of the said decree, the revenue

authority proceeded to carry out the correction of map and the aforesaid aspect has been dealt with by the lower Appellate Court while passing the impugned order. It is contended by the counsel that the order passed by lower Appellate Court is a well reasoned and speaking order which deals with the issue exhaustively and therefore no interference is warranted.

7. No other point is pressed or argued by the parties. Signature Not Verified Signed by: ASTHA SEN Signing time:

10/28/2023 1:38:19 PM

8. Heard rival submissions of the parties and perused the record.

9. A perusal of paragraph 17 of the order passed by lower Appellate Court reflects that the Court considered the aspect of passing of decree dated 23/10/2003. The lower Appellate Court also concluded that defendant No.4 in that civil suit had only right to the extent of 1746 Sq.ft. and accordingly, the decree was passed in favour of the plaintiff therein, thus, taking into consideration the judgment and decree passed in civil suit filed by the Birdi Chand Gothi, the lower Appellate Court found that the trial Court failed to appreciate that there were corrections of Nazul records by the revenue authority and the said corrections were ordered by the Collector, Betul and Additional Commissioner Bhopal. The details of the said orders are mentioned in paragraph 25 of the order of lower Appellate Court. The lower Appellate Court further concluded that on the strength of averments pertaining to execution of sale-deed by Mangilal Gothi and Shakur Bee, no temporary injunction could have been granted by the trial Court. The said findings of the lower Appellate Court in absence of any infirmity or perversity, in the considered view of this Court requires no interference.

10. Accordingly, the petition stands dismissed.

(MANINDER S. BHATTI) JUDGE Astha

Signature Not Verified Signed by: ASTHA SEN Signing time:

10/28/2023 1:38:19 PM