Madhya Pradesh High Court
Mahendra Singh vs Vishuna Bai on 13 February, 2024
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
MISC. PETITION No. 3772 of 2023
BETWEEN:-
MAHENDRA SINGH S/O SHRI MAKHAN
1.
SINGH, AGED ABOUT 55 YEARS.
DHARMENDRA SINGH S/O SHRI MAKHAN
SINGH, AGED ABOUT 40 YEARS.
2.
BOTH R/O KEERATPURA WARD NO. 17,
TEHSIL GOHAD, BHIND (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI SAMEER KUMAR SHRIVASTAVA - ADVOCATE)
AND
VISHUNA BAI WD/O LATE SHRI GABBAR
1.
SINGH, AGED ABOUT 85 YEARS.
AUTAR SINGH S/O LATE SHRI GABBAR
2.
SINGH, AGED ABOUT 60 YEARS.
DHEER SINGH S/O LATE SHRI GABBAR
3.
SINGH, AGED ABOUT 55 YEARS.
HARCHARAN SINGH S/O LATE SHRI
4.
GABBAR SINGH, AGED ABOUT 50 YEARS.
BITOLI BAI W/O LATE SHRI TEHSILDAR
5.
SINGH, AGED ABOUT 65 YEARS.
DASHRATH SINGH S/O LATE SHRI
6.
TEHSILDAR SINGH, AGED ABOUT 38 YEARS.
VISHAMBHAR SINGH S/O LATE SHRI
7.
TEHSILDAR SINGH, AGED ABOUT 35 YEARS.
JASWANT SINGH S/O LATE SHRI
TEHSILDAR SINGH, AGED ABOUT 30 YEARS.
8.
ALL R/O KEERATPURA, WARD NO.17,
TEHSIL GOHAD DISTRICT BHIND (M.P.)
2
THE STATE OF MADHYA PRADESH
9. THROUGH COLLECTOR, DISTRICT BHIND
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI N.K.GUPTA - SENIOR ADVOCATE WITH SHRI S.D.SINGH -
ADVOCATE)
-----------------------------------------------------------------------------------
ORDER RESERVED ON : 26.10.2023
ORDER PASSED ON : 13.02.2024
----------------------------------------------------------------------------------
This petition having been heard and reserved for order
coming on for pronouncement this day, this Court passed the
following order:-
ORDER
With consent heard finally.
2. The present petition is preferred by the petitioners/defendants
under Article 227 of the Constitution taking exception to the order
dated 14.06.2023 passed by First District Judge Gohad, District
Bhind whereby miscellaneous appeal under Order XLIII Rule 1 (d)
of CPC preferred by the respondents/plaintiffs is allowed and order
dated 06.05.2023 passed by Additional Judge of First Civil Judge
Junior Division Gohad is set-aside. Vide order dated 06.05.2023,
trial Court rejected the application under Order XXXIX Rule 1 and
2 of CPC of respondents/plaintiffs but vide impugned order dated
14.06.2023 passed by First District Judge Gohad in miscellaneous
appeal preferred by plaintiffs is allowed and temporary injunction
under Order XXXIX Rule 1 and 2 is granted. Therefore,
petitioners/defendants are before this Court.
3. Precisely stated facts of the case are that one suit has been
filed by the plaintiffs for declaration and permanent injunction with
the relief that plaintiffs are owner and possessor of the property
situate at Village Kiratpura, Tehsil Gohad District Bhind vide
Survey No.106/1 (new Survey No.315) ad-measuring 0.063 hectare.
They sought further declaration that demarcation line be carried out
from East to West rather than North to South and necessary
correction be carried out in the map by the Revenue Authority.
Permanent injunction is also sought regarding construction carried
out by the defendants over Survey Nos.317/1 and 317/2.
4. An application under Order XXXIX Rule 1 and 2 of CPC was
also preferred. Trial Court rejected the said application for
temporary injunction on the ground that plaintiffs are over Survey
No.315 and they are neither owner nor possessor over the suit
property at Survey Nos.317/1 and 317/2 prima facie, therefore,
temporary injunction was refused. Appellate Court allowed the
miscellaneous appeal on the ground that it appears that demarcation
has not properly been done by the Settlement Officers of Revenue
Department therefore, to avoid the multiplicity of proceedings of
temporary injunction deserves to be granted.
5. It is the submission of counsel for the petitioners/defendants
that the relief of the plaintiffs appear to be in respect of Survey
No.106/1 ad-measuring 0.063 Hectare and it is renumbered as
Survey No.315 ad-measuring 6 Biswa and defendants are not
carrying out any construction over the said survey number. Through
different transactions undertaken by erstwhile Jamidar-Keshav
Shastri, this property came into the possession of defendants and
they are making construction over Survey No. 106/2 (new Survey
Nos.317/1 and 317/2) therefore, they cannot be injuncted to
proceed with the construction on their legitimate land.
6. Per contra, learned counsel for the respondents opposed the
prayer. According to him, Revenue Officers carried out demarcation
in an arbitrary manner and their land has been kept behind the land
of defendants and land under the possession of defendants abut
main road. If status quo is changed then irreparable loss would be
ensued to the respondents/plaintiffs. He relied upon the judgment of
Apex Court in the case of Maharwal Khewaji Trust (Regd.),
Faridkot Vs. Baldev Dass, (2004) 8 SCC 488.
7. Heard the counsel for the parties and perused the documents
appended thereto.
8. This is the case where defendants have filed this petition
under Article 227 of the Constitution taking exception to grant of
temporary injunction by appellate Court in miscellaneous appeal.
9. Perusal of order dated 06.05.2023 reveals that construction
was carried out over new Survey Nos.317/1 and 317/2. Even
defendants in their written statements have categorically mentioned
that they are not proceeding with construction over Survey No.315.
They submitted that they are proceeding with construction over
Survey Nos.317/1 and 317/2. According to defendants, Survey
No.317 is not agriculture land but it has been diverted and land is
used for residential purpose. Therefore, prima facie for deciding
this application defendants cannot be injuncted to proceed with the
construction as that is their specific stand that they are not
proceeding with construction over Survey No.315.
10. Therefore, defendants are injuncted to the extent that they
will not proceeded with construction over Survey No.315 and it is
hereby clarified that defendants may proceed with the construction
but they will not create 3 rd party right so as to complicate the
situation without prior permission from the trial Court. It is also
made clear that in case, suit of plaintiffs succeeds then plaintiffs
would be entitled for damages if any adversity is caused over the
land and later on declared under the ownership of plaintiffs. Order
dated 14.06.2023 passed by Appellate Court is hereby modified to
this extent.
11. Petition stands allowed and disposed of in above terms.
(Anand Pathak)
Ashish* Judge
ASHISH
CHAURASIA
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
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serialNumber=A926F3CBF979ECA6A4C477577EEDBA3AB4F945
93A930B98DAE1B0AD16F90B5FD, cn=ASHISH CHAURASIA
Date: 2024.02.13 14:33:13 -08'00'
