Roopsingh vs Smt. Vidhyabai
2024 Latest Caselaw 12442 MP

Madhya Pradesh High Court

Roopsingh vs Smt. Vidhyabai on 3 May, 2024

Author: Anil Verma

Bench: Anil Verma

                                                       1
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                                AT INDORE
                                                     BEFORE
                                         HON'BLE SHRI JUSTICE ANIL VERMA
                                               ON THE 3 rd OF MAY, 2024
                                           MISC. PETITION No. 1246 of 2021

                           BETWEEN:-
                           1.    ROOPSINGH S/O LATE SHRI ONKARSINGH
                                 THAKUR, AGED ABOUT 70 YEARS, OCCUPATION:
                                 AGRICULTURE VILL-NANDED, TEH. MHOW
                                 (MADHYA PRADESH)

                           2.    JEEVANSINGH S/O LATE SHRI ONKARSINGH
                                 THAKUR, AGED ABOUT 66 YEARS, OCCUPATION:
                                 AGRICULTURE VILL NANDED TEH MHOW DIST
                                 INDORE (MADHYA PRADESH)

                           3.    SAMANDARSINGH S/O SHRI JEEVANSINGH
                                 THAKUR, AGED ABOUT 40 YEARS, OCCUPATION:
                                 AGRICULTURE VILL NANDED TEH MHOW DIST
                                 INDORE (MADHYA PRADESH)

                           4.    PRITAMSINGH S/O SHRI JEEVANSINGH THAKUR,
                                 AGED    ABOUT     39   YEARS, OCCUPATION:
                                 AGRICULTURE VILL NANDED TEH MHOW DIST
                                 INDORE (MADHYA PRADESH)

                           5.    SMT. ASHABAI W/O SHRI ROOPSINGH THAKUR,
                                 AGED    ABOUT    65   YEARS, OCCUPATION:
                                 AGRICULTURE VILL NANDED TEH MHOW DIST
                                 INDORE (MADHYA PRADESH)

                           6.    RAKHIBAI D/O SHRI JEEVANSINGH THAKUR,
                                 AGED    ABOUT    30  YEARS, OCCUPATION:
                                 AGRICULTURE VILL NANDED TEH MHOW DIST
                                 INDORE (MADHYA PRADESH)

                           7.    MAYABAI D/O SHRI JEEVANSINGH THAKUR,
                                 AGED    ABOUT    28  YEARS, OCCUPATION:
                                 AGRICULTURE VILL NANDED TEH MHOW DIST
                                 INDORE (MADHYA PRADESH)

                                                                             .....PETITIONER
                           ( BY SHRI MAKBOOL AHMAD MANSOORI- ADVOCATE)

Signature Not Verified
Signed by: AMOL
NIVRUTTIRAO MAHANAG
Signing time: 03-05-2024
18:38:03
                                                              2
                           AND
                           1.    SMT. VIDHYABAI W/O LATE SHRI HIMMATSINGH
                                 THAKUR, AGED ABOUT 55 YEARS, OCCUPATION:
                                 AGRICULTURE AND HOUSE WIFE VILL-NANDED
                                 TEH. MHOW (MADHYA PRADESH)

                           2.    SUMIT S/O LATE SHRI HIMMATSINGH THAKUR,
                                 AGED    ABOUT     35   YEARS, OCCUPATION:
                                 AGRICULTURE VILL NANDED TEH MHOW DIST
                                 INDORE (MADHYA PRADESH)

                           3.    STATION HOUSE OFFICER P.S. BADGONDA TEH
                                 DR. AMBEDKAR NAGAR, DIST INDORE (MADHYA
                                 PRADESH)

                           4.    STATE OF M.P. THR            COLLECTOR INDORE
                                 (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                           ( BY SHRI SAARANSH JAIN - ADVOCATE )

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

Petitioners / Defendants nos. 1 to 7 have preferred present petition under Article 227 of Constitution of India being aggrieved by impugned order dated 10/03/2021 passed in Misc. Civil Appeal no. 03/2021 by IInd Additional District Judge, Ambedkar Nagar, District- Indore, which has been allowed by setting aside the order dated 25/01/2021 passed in Civil Suit no. 48-A/2020 by 5th Civil Judge, Class-I, Ambedkar Nagar, District - Indore.

2. The facts of the case in brief are that the respondents/plaintiffs have filed a suit for permanent injunction stating that the suit land survey no. 13/2 admeasuring area 0.737 Hectare situated at village Nanded, Teh.- Dr. Ambedkar Nagar is recorded in name of plaintiffs. Originally the land Survey no. 13/2 was purchased by Himaatsingh (Husband of plaintiff no. 01 and father of plaintiff no. 02) on 10/04/1985 by registered Sale deed. Himmatsingh died

on 19/12/2017. After the death of Himmatsingh, the plaintiffs become owner of suit land Survey No. 13/2. Defendant no. 1 Roopsingh and defendant no. 2 Jeevansingh are real brother of Himmatsingh and other defendants are also family members and relatives. Defendants nos. 1 to 7 are creating dispute and they are trying to dispossess the plaintiff from suit land.

3. During pendency of the civil suit, the plaintiffs/respondents have filed an application for temporary injunction. The trial Court, after hearing both the parties, vide order dated 25/01/2021 dismissed the application for temporary injunction. Thereafter, an appeal was filed by the plaintiffs before the First Appellate Court, which has reversed the order of the trial Court allowing the Misc. Civil Appeal no. 3/2021 vide order dated 10/03/2021 by issuance of temporary injunction in favour of the plaintiffs. Being aggrieved by the same, this Misc. Petition has been filed before this Court.

4. Learned counsel for the petitioners submits that the impugned order is illegal, arbitrary and contrary to the provisions of law. The Appellate Court has committed an error by interfering and reversing a well reasoned order passed by the trial Court. The First Appellate Court has committed an error while discarding the material evidence available on record. There was no prima-facie case. Balance of convenience and irreparable loss is in favour of the respondent, therefore, they do not deserve for any temporary injunction. In

previous suit bearing civil suit no. 55-A/04, vide order dated 07/07/2006, it was held that Roopsingh and Jeevansingh are in possession of suit land. Hence, he prays that present petition be allowed and the impugned order be set aside.

5. Learned counsel for the respondent opposes present petition by

submitting that the impugned order passed by the First Appellate Court is just

and proper and it does not deserve for any interference.

6. Both the parties heard at length and perused the record.

7. So far as prima-facie case is concerned, from perusal of the registered sale deed dated 10/04/1985, it appears that Himmant Singh, who happens to be husband of respondent no. 1/ plaintiff Vidyabai had purchased the suit land bearing Survey no. 13/2 admeasuring 0.737 hectors and thereafter, his name was duly mutated as Bhuswami, but since 1985 till now, the petitioners did not challenge the aforesaid mutation order which has been found in the name of Himmantsingh. Nothing has been mentioned in the aforesaid sale deed that the suit land was purchased in the name of Himmat Singh as a Karta of Hindu Undivided Family..

8. Although learned counsel for the petitioner contended that during lifetime of Himmatsingh, a family settlement has been done between Himmatsingh and his brothers, but the said settlement is hand written document. Nothing has been mentioned regarding description of the suit land. No mutation proceeding has been done on the basis of the aforesaid family settlement. Apart from the above, name of Himmatisngh is continuously recorded as Bhuswami in respect of the revenue records. His possession is also prima-facie proved by in the Khasra .2019-2020. On the basis of the aforesaid, it is prima-facie established that the plaintiffs/respondents are in possession of the suit land.

9. Although learned counsel for the petitioner has placed reliance upon the judgment delivered by Hon'ble Supreme Court in the case of Wander Ltd. and another Vs. Antox India. Pvt. Ltd reported in 1990 (Supply)SCC 727, in which it has been held as under :

"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate

Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph:"

10. But in the instant case, First Appellate Court has rightly considered documentary evidence available on record, which was not properly assessed by the trial Court. The plaintiffs have prima-faie established their case in respect of the ownership and possession of the suit land, hence the balance of convenience and irreparable loss also found in their favour. Therefore, the First Appellate Court has not committed error, while allowing the application filed by the plaintiffs under Order 39 Rule 1 and 2 of CPC and allowing Misc. Appeal.

11. In light of the aforesaid, present Misc. Petition is devoid of merit and substance, hence stands dismissed.

CC as per rules.

(ANIL VERMA) JUDGE amol