Madhya Pradesh High Court
Achchhelal Sen vs Premlal on 19 February, 2024
Author: Amar Nath Kesharwani
Bench: Amar Nath Kesharwani
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
SA No. 200 of 2019
(ACHCHHELAL SEN AND OTHERS Vs PREMLAL AND OTHERS)
Dated : 19-02-2024
Shri S.K. Tiwari - Advocate for appellants.
Shri Dinesh Upadhyay - Advocate for respondent Nos.3 and 4.
None for respondent No.6, though served.
Smt. Shakti Tripathi - Panel Lawyer for respondent No.9/State.
Appellants/plaintiffs have filed a civil suit before the trial Court for
partition of 1/2 share in favour of plaintiff No.1 over the suit property and
for delivery of possession in respect of 1/2 share of suit property and for
declaration of registered sale deed dated 05/05/2004 as null and void. After
framing the issues and recording the evidence of parties, learned trial Court
vide impugned judgment dated 16/07/2012 dismissed the suit and gave
finding that the plaintiff No.1 was not title holder and possession holder of
1/2 share of suit property. Being aggrieved by the judgment,
appellants/plaintiffs have preferred an appeal before the Court of Second
Additional District Judge, Umaria, which also got dismissed vide judgment
dated 24/10/2018, affirming the judgment passed by the trial Court. Hence,
there is concurrent findings of both the courts below that the
appellants/plaintiffs are not possession holder of the suit property. Being
aggrieved by the impugned judgment, the appellants/plaintiffs have filed
present second appeal before this Court.
2. Appellants/plaintiffs have filed IA No. 700/2019, which is an
application under Order 39 Rule 1 and 2 read with Section 151 of CPC by
appellants for grant of temporary injunction and to direct the defendants
not to interfere in the possession of appellants/plaintiffs in the disputed
lands during pendency of the appeal.
3. This Court vide order dated 25/01/2019, directed the parties to
maintain status quo till the next date of hearing.
4. Learned counsel for respondent Nos. 3 and 4 also filed IA No.
5724/2021, which is an application for vacating interim order dated
25/01/2019 regarding status quo.
5. Learned counsel for respondent Nos. 3 and 4 has submitted
that the appellants/plaintiffs are trying to take disturb the peaceful
possession of respondents over the suit land and they are taking the crops
grown by respondents.
6. Learned counsel for appellants/plaintiffs denied all the allegations
made against them by filing the reply of the said application and submitted
that if the respondents are not restrained from disturbing the peaceful
possession on the suit property, then whole purpose of filing of the instant
appeal would become infructuous and appellant will suffer irreparable loss
and injury. It is also submitted that the respondents have failed to establish
their right, share and title over the suit property and admittedly the
possession of appellant has been found. Apart from that no irreparable
loss and injury is being caused to the respondents by way of ad-interim
measure as both the parties are directed to maintain status quo over the
suit property. It is well settled law that if, the appeal is being admitted on
substantial question of law, then the stay as regards to disputed property
ought to be granted, otherwise, disputed property could lose its originality
and existence, which will cause great prejudice to the appellant and no
useful purpose would be served out only on pendency of instant appeal.
7. From the perusal of previous orders, it reveals that this appeal
has been admitted by this Court, vide order dated 16.03.2022 on the
following substantial questions of law :-
"1. Whether the learned Courts below have committed
the substantial error of law in granting the relief which was not
claimed by the defendants or they did not file any counter plaint,
counter appeal or cross objection in respect of finding of learned
Civil Judge regarding the validity of registered sale deed about the
sale of excess land by executor of P/9 and P/10 .?
2. Whether, the learned Courts below have committed
the substantial error of law that Will duly proved as per Section
68 of Evidence Act, 1872 and Section 63(3) of Indian
Succession Act, 1925?
3. Whether, the learned Courts below have committed
the substantial error of law and failed to consider the admission
regarding the partition in between all LR's of Late Simali and thus
after the partition the suit property became self acquire of
Chironjiya Bai regarding her own property and had full right of
sale, transfer or execute Will of her property. ?"
8. Considering the fact that in civil suit, appellants/plaintiffs have
sought relief of possession on 1/2 share of the suit property and learned
trial Court as well as learned First Appellate Court have not found
possession of appellants/plaintiffs over the suit land, therefore, it cannot
be said that appellants are in possession of the suit property. So far as
order dated 25/01/2019 is concerned with regard to maintaining status quo
is concerned, this order is not passed neither in favour of parties nor
against any parties.
9. Looking to the facts and circumstances of the case and
considering the fact that the civil suit filed by the appellants/plaintiffs
before the trial Court for partition of 1/2 share in favour of plaintiff No.1
over the suit property and for delivery of possession in respect of 1/2
share of suit property was dismissed by concurrent findings of learned
trial Court as well as First Appellate Court, therefore, the possession of
appellants/plaintiffs was not found proved over the suit property by the
Courts below, therefore, no question arises as to restraining the
defendants/respondents from interference in the possession of
appellants/plaintiffs.
10. In view of above discussion, IA No. 700/2019 stands dismissed
and in consequence, thereof IA No. 5724/2021 stands partly allowed.
11. However, as the appellants/plaintiffs claimed for declaration and
title over 1/2 share of suit property, therefore, respondents are directed not
to alienate or create any third party interest over the suit property till final
disposal of the appeal.
12. It is an admitted second appeal.
13. Office is directed to list the appeal for final hearing in due
course.
(AMAR NATH (KESHARWANI))
JUDGE
skt
