Madhya Pradesh High Court
Mohammad Shahid vs Ujjain Development Authority Ujjain on 17 February, 2025
Author: Pranay Verma
Bench: Pranay Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. APPEAL No. 6283 of 2024
MOHAMMAD SHAHID
Versus
UJJAIN DEVELOPMENT AUTHORITY UJJAIN AND OTHERS
Appearance:
Shri Sunil Kumar Jain, learned Senior Advocate with Shri
Harshwardhan Singh Rathore, learned counsel for the appellant.
Shri Bharat Singh, learned counsel with Shri Koustubh Pathak, learned
counsel for respondent No.3.
ORDER
(Reserved on 05.11.2024)
(Pronounced on 17.02.2025)
1. This appeal under Order 43 Rule 1(r) of the Code of Civil
Procedure has been preferred by the plaintiff/appellant being aggrieved by
the order dated 03.08.2024 passed in RCSA/599/2023 by the 3rd District
Judge, District Ujjain whereby his application under Order 39 Rule 1 and 2
of the CPC for issuance of temporary injunction has been rejected.
2. As per the plaintiff the suit plot was given to Smt. Krishnabai by
the defendants under a lease deed dated 30.08.1995 for a period of 30 years
for residential purposes which lease was renewable and transferable. The plot
was sold by way of a registered sale deed dated 14.11.1995 by Smt.
Krishnabai in favour of one Smt. Premlata Rathore. Subsequently by a
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registered sale deed dated 28.12.1998 Smt. Premlata Rathore sold the same
in favour of the plaintiff and delivered possession of the same to him.
Thereafter the plaintiff duly obtained permission from Municipal
Corporation, Ujjain and constructed a house thereupon. He has also been
recorded over the house and is paying the taxes for the same. However, when
plaintiff had requested the defendants for his mutation over the suit plot no
action thereupon was taken. Instead, on 08.08.2023 defendant No.2 issued a
show cause notice to him as regards renewal of the lease deed reply to which
was submitted by him on 22.08.2023. The same was however not accepted
by the defendants and publication was made in the newspaper in that regard
and on 07.11.2023 plaintiff was threatened that possession of the suit
plot/house would be taken from him.
3. On such contentions the plaintiff has instituted an action for
declaration of his title to the suit property, for declaration that the notice
dated 08.08.2023 issued by the defendants and all consequent proceedings
pursuant thereto are null and void, declaration that plaintiff is entitled for
renewal of the lease deed in his favour and defendants are bound to accept
all the taxes etc. for the same, for permanent injunction restraining the
defendants from interfering with his possession over the suit property and for
mandatory injunction directing the defendants to renew the lease deed in his
favour.
4. Along with the plaint the plaintiff also filed an application under
Order 39 Rule 1 and 2 of the CPC praying for issuance of temporary
injunction restraining the defendants from interfering with his possession
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over the suit property. The defendants contested the application by filing
their reply submitting that no permission was obtained by the plaintiff from
the defendants prior to purchase of the suit plot/house by him. The plaintiff
has not disclosed as to in what manner he is entitled for being mutated over
the property. Though the suit plot was allotted for residential purpose but the
same is being used for non-residential purpose by constructing two shops
which is contravention of the terms and conditions of the lease deed. Though
the lease has expired on 10.10.2014 but no steps have been taken by the
lessee for its renewal. Various conditions of the lease deed have been
violated by the plaintiff. Notice has been issued to the plaintiff by defendants
under the provisions of M.P. Vikas Pradhikarano Ki Sampattiyon Ka
Prabandhan Tatha Vyayan Niyam, 2018 as amended in the year 2021 stating
that the lessee should rectify the violation of the terms of the lease deed
within a period of 15 days but the same has not been done. The lessee has
sold the suit plot without obtaining written consent from the defendants as a
result of which the lease deserves to be forfeited.
5. By the impugned order the trial Court has rejected plaintiff's
application for issuance of temporary injunction holding that as per the terms
of the lease deed the plot could not have been sold without written
permission of the defendants but no such permission has been produced
hence the sale deed executed by the original lessee is illegal. The plaintiff is
prima facie not the lessee of the suit plot. He is not the legal representative of
the original lessee hence is not entitled to the benefits of the provisions of the
Rules, 2018 as amended in 2021. No document as regards building
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permission or his mutation over the plot/house has been produced by the
plaintiff. Only on the basis of building permission legal mutation cannot be
assumed. The plaintiff is not entitled for renewal of the lease deed in his
favour and his possession, if any, is also inconsequential. The same cannot
also be termed to be settled possession.
6. Learned Senior Counsel for the plaintiff has submitted that the
trial Court has gone into excessive details of the facts of the case and has
while deciding the application for issuance of temporary injunction almost
decided the civil suit itself which was not permissible. It has been further
submitted that application has already been preferred by the plaintiff on
22.08.2023 and also on 04.10.2024 before the defendants in terms of Rule 21
of the Rules, 2018 as amended in the year 2021 which are pending during
pendency of which he cannot be dispossessed. It is further submitted that
plaintiff is in possession of the suit plot/house which is settled possession
hence temporary injunction ought to have been issued in his favour. His
possession is not sporadic by way of encroachment. His claim is also for
declaration of title hence his possession deserves to be protected. Reliance
has been placed on the decision of the Apex Court in the case of Rame
Gowda (dead by LRs) V/s. M. Varadappa Naidu (dead by LRs) and Another
(2004) 1 SCC 769 and order dated 08.08.2023 passed by this Court in M.P.
No.4077/2022 (Bharta Rathore Patliya V/s. Gaja Rathore Patliya and
Another).
7. Per contra, learned counsel for the defendants has submitted that
defendants have taken recourse to law and are not attempting to forcibly
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dispossess the plaintiff. Issuance of temporary injunction would result in
staying the procedings legally instituting by the defendants which cannot be
permitted. Under the terms of the original lease deed the lessee had no right
to transfer the lease without written permission of the lessor which is what
has precisely been done. Any transaction pursuant thereto is null and non-est
in the eye of law. The lessee or the plaintiff has never taken any steps
subsequent to 2014 when the lease expired for its renewal till initiation of the
present proceedings. The application preferred under Rule 21 of the Rules,
2018 as amended in the year 2021 is of no avail to the plaintiff. The same
has already been rejected by the defendants on 11.10.2023 wherein request
for renewal and impounding was made. This order has been challenged by
plaintiff in a separate civil suit preferred by him which is pending
adjudication. The said fact has been suppressed by the plaintiff in the present
suit. In that suit plaintiff's application for issuance of temporary injunction
has been rejected by the trial Court as well as by the appellate Court. It is
hence submitted that the petition deserves to be dismissed. Reliance has been
placed on the decision of the Apex Court in Delhi Development Authority
V/s. Anant Raj Agencies Private Limited (2016) 11 SCC 406 , Ghaziabad
Development Authority and Others V/s. Machhla Devi (2019) 17 SCC 401
and order dated 12.10.2018 passed by the Division Bench of this Court in
W.P. No.15286/2018 ( Smt. Dr. Sajni Bajaj V/s. Indore Development
Authority and Others.
8. I have considered the submissions of the learned counsel for the
parties and have perused the record.
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9. Admittedly the lease deed with respect to the suit property has
expired way-back in the year 2014. Thereafter it does not appear that any
steps were taken either by the original lessee Krishnabai or by the plaintiff
for renewal of the lease deed even after lapse of 9 years from its expiry. No
document in that regard has been produced before the trial Court. The
defendants are admitedly the owners of the suit property and had leased out
the same to Smt. Krishnabai. Plaintiff has not produced any document to
show that she had any right or authority to transfer the lease in his favour.
On the contrary, in the lease deed there is a specific condition in Clause 4
that without permission any transfer of the lease would not be acceptable. No
document has been brought on record by the plaintiff to show that the lease
was transferred by Smt. Krishnabai in favour of Premlata or by Premlata in
his favour with permission of the defendants. There has hence been clear
violation of the express terms of the lease deed itself and the defendants are
not bound to condone the same. The sale deed executed in favour of plaintiff
is illegal the same being in contravention to the terms of the original lease
deed. He is hence neither the lessee nor a legal tenant in the suit property.
10. The plaintiff had made an application on 21.08.2023 in
accordance with Rule 21 of the Rules, 2018 as amended in the year 2021.
The said fact has not been disclosed by him in the plaint. In any case that
application has already been rejected by the defendants by order dated
11.10.2023 passed by their Board. The application was for renewal and
compounding of the lease. The order dated 11.10.2023 has already been
challenged by the plaintiff by preferring Civil Suit No.691/2023 before the
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trial Court itself along with an application under Order 39 Rule 1 and 2 of
the CPC for issuance of temporary injunction. The same was rejected by the
trial Court by order dated 03.08.2023 which has been affirmed in appeal by
the appellate Court by order dated 26.06.2024. These facts have deliberately
not been pleaded by the plaintiff in the plaint though he ought to have done
so. He has hence not come to the Court with clean hands. Mere preferring of
a fresh application by the plaintiff on 04.10.2024 in terms of Rule 21 of the
Rules, 2018 as amended in the year 2021 is wholly meaningless since a
similar application has already been rejected by the defendants earlier which
is the subject matter of a separate civil suit. In any case plaintiff is not the
lease holder who was Smt. Krishnabai. Application in terms of Rules, 2018
could have been made only by the original lease holder i.e. Smt. Krishnabai
and not the plaintiff hence making of an application by him in terms of
Rules, 2018 does not benefit him in any manner. The defendants have
despite the same considered and decided his application.
11. The defendants have instituted legal proceedings against the
plaintiff for dispossessing him from the suit property. They have not resorted
to his forcible dispossession as is evident from the notice dated 08.08.2023
itself issued by them. They have taken recourse to the procedure as
prescribed by law. There does not appear to be any effort on their part to
dispossess the plaintiff without following the due process of law who in view
of expiry of the lease deed is not the title holder of the suit property. The
lease deed having terminated by efflux of time and no steps having been
taken for its renewal, possession of plaintiff would be wholly unauthorized.
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In such circumstances the judgments relied upon by the learned Senior
Counsel for the plaintiff do not help him in any manner.
12. It is well settled that any finding recorded in the order of
temporary injunction is only for the limited purpose of decision of such
application and has no bearing upon the ultimate decision of the civil suit on
merits hence the contention that while deciding the application for issuance
of temporary injunction the civil suit has itself been decided is not of any
substance.
13. In view of the aforesaid discussion, I do not find any error
having been committed by the trial Court in rejecting the application under
Order 39 Rule 1 and 2 of the CPC preferred by the plaintiff. The appeal is
hence found to be devoid of any merits and is hereby dismissed.
(PRANAY VERMA)
JUDGE
ns
