Madhya Pradesh High Court
Smt. Kirti Mehta vs Smt. Jaishree Kabra on 2 September, 2023
Author: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 2 nd OF SEPTEMBER, 2023
MISC. PETITION No. 2341 of 2021
BETWEEN:-
1. SMT. KIRTI MEHTA W/O SHRI PRADEEP MEHTA,
AGED ABOUT 46 YEARS, OCCUPATION: HOUSE
WIFE WARD NO. 2 OPPOSITE CHAMELI KI
CHHATRI BADA BAJAR NARSINGHGARH
DISTRICT RAJGARH (MADHYA PRADESH)
2. PRADEEP MEHTA S/O SHRI MISHRILAL MEHHTA,
AGED ABOUT 50 YEARS, OCCUPATION: BUSINESS
WARD NO. 02 OPP. CHMELI KI CHHATRI, BADA
NAJAR NARSINGHGARH DISTRICT RAJGARH
(MADHYA PRADESH)
.....PETITIONERS
(SHRI GAGAN PARASHAR, LEARNED COUNSEL FOR THE PETITIONERS).
AND
1. SMT. JAISHREE KABRA W/O JEEVANLAL KABRA,
AGED ABOUT 53 YEARS, OCCUPATION: HOUSE
WIFE WARD NO. 2 OPPOSITE CHAMELI KI
CHHATRI, BADA BAJAR, NARSINGGARH
DISTRICT RAJGARH (MADHYA PRADESH)
2. PRAVEEN MEHTA S/O SHRI MISHRILAL MEHTA,
AGED ABOUT 49 YEARS, OCCUPATION: BUSINESS
WARD NO. 2, OPPO. CHAMELI KI CHHATRI BADA
BAJAR NARSINGHGARH DISTRICT RAJGARH
(MADHYA PRADESH)
3. CHIEF MUNICIPAL OFFICER NAGAR PALIKA
P A R I S H A D , NAGAR PALIKA PARISHAD,
NARSINGHGARH DISTRICT RAJGARH (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI MOHAN SHARMA, LEARNED COUNSEL FOR THE RESPONDENT [R-
1].
SHRI MUKESH SINJONIA, LEARNED COUNSEL FOR THE RESPONDENT
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 9/5/2023
6:39:35 PM
2
[R-3].
This petition coming on for admission this day, th e court passed the
following:
ORDER
This Miscellaneous Petition has been filed by the petitioners being
aggrieved by the order dated 06.01.2021 passed by Ist A.D.J, Narsinghgarh,
district Rajgarh in MCA No.09/2019 whereby the appellate Court has affirmed
the order dated 30.03.2019 passed by IInd Civil Judge, Junior Division,
Narsinghgarh, district Rajgarh in civil suit No.84A/2018 .
2. Brief facts of the case are that respondent No.1 filed a civil suit
against the present petitioners and respondent No.2 and made averments to the
effect that the petitioners herein in connivance with the respondent No.2 are
raising construction over a government street which is 20 feet in length and 5
feet in width. It was further averred by the respondent No.1 that she was having
an entrance into her house through the said street which has been blocked by
the petitioners. It was further averred that the respondent's septic tank which
was in the said street was also broken by the petitioners while raising illegal
construction. With the aforesaid averments, respondent No.1 filed a civil suit
seeking relief of perpetual injunction and mandatory injunction of removing the
alleged illegal construction raised by the petitioners. In the aforesaid civil suit,
an application for temporary injunction under section 39 Rule 1 & 2 CPC was
also filed by the respondent No.1. In her application for ex-parte injunction,
respondent No.1 relied on a Panchnama prepared by respondent No.3 but
made false assertions regarding the contents of the Panchnama. One of the
Panchnama made in pursuance of inspection carried out in the presence of
petitioners rules out any encroachment by the petitioners. Copy of the
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 9/5/2023
6:39:35 PM
Panchnama is Annexure P/4.
3. After service of notice, petitioners appeared before the trial Court and
submitted their reply to the application under Order 39 Rule 1 & 2 CPC. The
trial Court vide order dated 30.03.2019 allowed the application granting
temporary injunction and restrained the petitioners from raising any construction
over the septic tank situated on the disputed street. The petitioners challenged
the aforesaid order granting temporary injunction by filing an appeal before the
Court of Additional District Judge, however, the said appeal was dismissed by
the appellate Court vide impugned order dated 06.01.2021 by affirming the
order passed by the trial Court. Being aggrieved by the aforesaid impugned
orders, petitioners have filed the present petition.
4. Learned counsel for the petitioners submits that the impugned orders
are patently illegal and against the settled position of law. The Courts below
have committed grave error of law and facts in exercising the jurisdiction vested
in them by granting an order of temporary injunction even in the facts and
circumstances where the suit property was not properly defined in the suit. He
further submitted that the Courts below have erred in law in holding that the
balance of convenience is in favour of the respondent No.1. The respondent
No.1 has utterly failed to demonstrate any right or title over the suit property,
therefore, in the light of the plaint averments, the temporary injunction granted
by the trial Court and affirmed by the appellate Court has become a tool into the
hands of respondent No.1 which she is using to obstruct any type of
construction by the petitioners. Hence, the petitioners prayed that the orders
passed by the Courts below be set aside and the petition be allowed.
5. On the other hand, learned counsel for the respondent No.1 has
argued in support of the orders passed by the Courts below and prayed for
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 9/5/2023
6:39:35 PM
dismissal of the petition.
Heard learned counsel for the parties and perused the record.
6. The first contention raised by the counsel for the petitioner is that the
as per the Panchnama Annexure P/4 made by the Nagar Palika Parishad,
Narsinghgarh no passage (gali) was mentioned in the sale deed of the
respondent No.1. He contended that as per the said Panchnama the entrance of
the respondent is separate and on the other side of the property but the fact
remains that this document was neither produced before the trial Court nor in
the appellate Court, therefore, this document is of no avail to the petitioners.
The appellate Court in para-10 of its judgment has specifically held that as per
the sale deed executed in favour of appellant No.1/petitioner, there is a passage
(samlati gali) on the south direction of her property, therefore, the right to use
the passage adjacent to the house of the respondent No.1/plaintiff goes
exclusively in her favour and the petitioners have prima facie failed to prove
their ownership on the said disputed passage. The appellate Court also found
that the petitioners are raising illegal construction over the said passage despite
restraining them from doing so. The trial Court as well as the appellate Court
have found that the disputed property is a passage (gali) in which the petitioners
have no title, therefore, they have no right to raise any illegal construction on
that passage. These are all findings of fact arrived at by the Courts below on
the basis of the proper appreciation of evidence came on record.
7. In view of the foregoing discussion, in the considered opinion of this
Court, prima facie there is no case in favour of the petitioners so as to warrant
interference by this Court in the impugned orders passed by the Courts below.
Accordingly, the petition being devoid of merit is hereby dismissed.
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 9/5/2023
6:39:35 PM
(HIRDESH)
JUDGE
hk/
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 9/5/2023
6:39:35 PM
