Madhya Pradesh High Court
Khemchand Gupta vs Ramesh Chand Shivhare on 21 February, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 21 st OF FEBRUARY, 2024
MISC. APPEAL No. 5675 of 2023
BETWEEN:-
KHEMCHAND GUPTA, S/O LATE SHRI SHIVCHARAN
LAL GUPTA, AGED ABOUT 63 YEARS, OCCUPATION:
BUSINESS, R/O 94/10A JAKIPURAM,, CIVIL LINE, JHANSI
(UTTAR PRADESH)
.....APPELLANT
(BY SHRI PRASHANT SHARMA - ADVOCATE)
AND
1. RAMESH CHAND SHIVHARE, S/O SHRI RAMDAS
SHIVHARE, AGED 65 YEARS, R/O BALLE KA DERA,
DABRA, GWALIOR (MADHYA PRADESH)
2. SMT. SURENDRA KAUR, S/O LATE SHRI HEERA
SINGH AULAKH, AGED 70 YEARS, R/O THAKUR
BABA ROAD, DABRA, GWALIOR (MADHYA
PRADESH)
3. VIKRAM SINGH AULAKH, S/O LATE SHRI HEERA
SINGH, AGED 50 YEARS, R/O THAKUR BABA
ROAD, DABRA, GWALIOR (MADHYA PRADESH)
4. VIRENDRA SINGH AULAKH S/O LATE SHRI
HEERA SINGH AULAKH, AGED 48 YEARS, R/O
THAKUR BABA ROAD, DABRA, GWALIOR
(MADHYA PRADESH)
5. HARPREET SINGH, D/O LATE SHRI HEERA SINGH
AULAKH, AGED 42 YEARS, R/O THAKUR BABA
ROAD, DABRA, GWALIOR (0MADHYA PRADESH)
6. PRAMOD KUMAR S/O SHRI DAMODAR JAAT,
AGED 52 YEARS, R/O BALLE KA DERA, DABRA,
GWALIOR (MADHYA PRADESH)
7. DEVENDRA KUMAR, S/O SHRI DAMODA JAAT,,
AGED 60 YEARS, R/O BALLE KA DERA, DABRA,
2
GWALIOR (MADHYA PRADESH)
8. ABHAY SINGH, S/O SHRI DAMODAR JAAT, AGED
48 YEARS, R/O BALLE KA DERA, DABRA,
GWALIOR (MADHYA PRADESH)
9. HARI SINGH, S/O SHRI DAMODAR JAAT, AGED 45
YEARS, R/O BALLE KA DERA, DABRA, GWALIOR
(MADHYA PRADESH)
10. SMT. KUSUM, W/O SHRI PRAMOD SINGH, AGED
60 YEARS, R/O SARAFA BAZAR, DABRA ,
GWALIOR (MADHYA PRADESH)
11. STATE OF MADHYA PRADESH THROUGH
COLLECTOR, GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO. 1 TO 10 BY SHRI N.K.GUPTA - SENIOR ADVOCATE
WITH SHRI S.D.SINGH - ADVOCATE )
This appeal coming on for admission this day, the court passed the
following:
ORDER
Present appeal has been filed by appellant/defendant No. 1 being
aggrieved by order dated 8/9/2023 in RCS-A/139/2023; whereby, application
filed by respondents No. 1 to 10/plaintiffs under Order XXXIX Rule 1 and 2
CPc has been allowed.
2. Briefly stated facts of the case are that plaintiffs have filed a suit for
declaration and injunction over the suit properties as mentioned in the plaint
situate at village Bujurg, Dabra, Gwalior claiming that they are the owner of the
properties over which appellant/defendant No. 1 is trying to encroach upon. It
is further stated that title of the property travelled to plaintiffs/respondents No. 1
to 9 vide sale deed dated 27/6/89 executed by power of attorney holder Vidhya
Bhusan Sharma of Guttiram, Mangal Singh and Ramobai and to
plaintiff/respondent No. 10 by sale deed dated 19/1/1996 executed by Dinesh
Kumar, Munnalal and Kamal Kishore. Alongwith the plaint, plaintiffs have also
filed an application under Order XXXIX Rujle 1 and 2 CPC for temporary
injunction of which reply was submitted by appellant contending that defendant
is having ownership over the property and it is further contended that the
properties as claimed by the plaintiffs are different to that of defendant, to show
such fact, revenue map was also filed. Trial Court by the impugned order
allowed the application by observing that since application of defendant filed
under Order VII Rule 11 of CPC has already been dismissed, the plaintiffs are
entitled to get injunction. Hence, appellant/defendant No. 1 is before this Court.
3. It is the submission of learned counsel for the defendant No. 1 that
map attached with the plaint clearly shows the status of property. The land
which has been purchased by the respective parties has already been partitioned
and therefore, parties are not in conflict in relation to title over the properties.
the title is rather admitted because neither plaintiff claimed through the owner of
defendant and vice -versa. There was no material before the trial Court to show
and suggest that the defendant has encroached over the area of plaintiff. Further
the injunction was liable to be denied to respondents only on the ground that
they stated plaintiffs' title over only 2 bigha 16 biswa of land while it is over 3
bighas 6 biswas of land.
4. In this appeal, appellant/defendant has also filed two applications
under order 41 rule 27 of CPC and produced documents as per the list and
prayed to admit documents in evidence as additional evidence.
5. Respondents/plaintiffs have opposed said applications and have
prayed to dismissed to said applications and consequently of appeal.
6. Heard learned counsel for both the parties and perused the respective
pleadings brought on record. Documents produced on behalf of
appellant/defendant No. 1 are related with claimed property so those
documents are important and necessary for disposal of this appeal. In such
situation, it is justifiable to admit these documents as additional evidence.
Hence, both said applications are allowed after consideration and produced
documents are taken on record.
7. This is an admitted fact in the case that purchasing to 14186 square
feet land from total area 0.199 hectare of lands survey no. 355/1/2 min.
355/1/2/2/2, 356/1/1 and 349/1/1 through separate sell deeds on different dates
thereafter possession has been taken by plaintiffs. Likewise total 2 Bigha and
16 Biswa land of separate survey numbers has been purchased by
plaintiff/appellant while it has been said to have been cultivating only 3 Bigha
and 6 Biswa land by him. It is also undisputed fact that no boundaries of
purchased lands have been mentioned in both sale deeds of parties. Most of the
part of land of his ownership has been sold as plots by defendant.
8. In this case, a consolidated map of purchased land, has been
produced by plaintiffs along with plaint and its boundaries have been shown.
Disputed land being part of lands of their survey number, it has been shown to
have situated with the land of defendant in West direction in this map. There
has not been any dispute among the parties in respect of possession over
purchased lands by the plaintiffs as well as by the defendant. Denying to said
map enclosed with the plaint, revenue map of concerned village has also been
filed by the defendant, according to which, there has been land of other survey
number existing in between the lands of plaintiffs and defendant but it has also
been stated by the defendant to obtain some land from a person named Sheetal
Prasad and showing more area than the purchased land. One map of their own
land has been produced. Nothing has been clarified on behalf of Sheetal Prasad
whether he was owner of the lands of these survey numbers. Prima facie, no
evidence has been produced before trial court in respect of possession of
defendant over disputed land and his title over remaining land. Previously
passed judgment in the preivous litigation between defendant's previous
owners Ramgopal and Sheetal Prasad is not binding upon the plaintiffs.
9. Thus, it is explicit to be triable issue in favour of plaintiffs and it is also
clear that suit filed by them is of significance. It is likely to take time in disposal
of the case. In such a situation, trial court has committed no error to allow the
application of temporary injunction filed on behalf of plaintiffs/respondents.
10. Impugned order is sustainable. Hence, appeal is dismissed.
(ROOPESH CHANDRA VARSHNEY)
JUDGE
JPS/-
JAI
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
PRAKASH
GWALIOR,
2.5.4.20=287738d30aabaeda9b10cecdf179
cec865c7633f4cfb9e38ce14fcbb05b9522a,
postalCode=474001, st=Madhya Pradesh,
SOLANKI
serialNumber=8D6BC1C9FCE36623D0BD6
B8072A2D8C01433EBD48AE4F609F108CA
8F8DE6B522, cn=JAI PRAKASH SOLANKI
Date: 2024.03.12 10:22:47 +05'30'
