Madhya Pradesh High Court
Smt. Sarita Sodani vs Smt. Gajrabai on 7 March, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 7 th OF MARCH, 2025
MISC. APPEAL No. 3243 of 2024
SMT. SARITA SODANI
Versus
SMT. GAJRABAI AND OTHERS
Appearance:
Shri Sanjay Pathak - advocate for the petitioner.
Shri Shivendra Singh - Advocate for the respondents No. 1, 3 and 4..
JUDGMENT
This miscellaneous appeal under Order 43 Rule 1 of Civil Procedure
Code, 1908 is preferred being aggrieved by the order dated 03.02.2024 in
RCS-A-238/2019 by 27th District Judge, Indore, whereby injunction has
been issued in favour of respondent No.7/plaintiff against the
appellant/defendant No.7 and respondent Nos. 1 to 3/defendant Nos.1 to 3.
2. The facts in brief are that respondent No.7/plaintiff Smt Anuradha
Dubey filed a Civil suit through plaint (Annexure-P-10) for declaration of
title and permanent injunction on 13.03.2019 regarding House No.25,
Vishwakarma Nagar, Indore on the ground that plaintiff and defendants No.2
to 6 are the children of late Laxminarayan Pandit and defendant No.1
Gajrabai. Laxminarayan Pandit died on 17.07.1996. House No. 25,
Vishwakarma Nagar, Indore devolved to plaintiff and defendants No.1 to 6,
after the death of Laxminarayan Pandit. Plaintiff has equal share in the
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property, but defendants No.2 and 3 colluded and are trying to dispose off
the property without the consent of the plaintiff. On 24.10.2017 a consensus
has arrived between the plaintiff and defendant No.1 to 6. Plaintiff was not
allotted her due share, so agreement was not signed by her. Public notice
was published on 28.07.2018 in 'Dainik Bhaskar' Daily Newspaper and
plaintiff also published a counter notice and also submitted objection
regarding registration of the sale deed on 28.11.2018 and filed a Civil suit.
Appellant/Defendant No.7 filed a written statement Annexure-P-11 and reply
of the temporary injunction application through Annexure-P-12 on
06.10.2023 and trial Court passed temporary injunction in favour of
plaintiff/respondent No.7 and restrained the defendants No. 1 to 3 to
execute the sale deed of the disputed property in favour of defendant
No.7/appellant.
3. This miscellaneous appeal has been preferred on the ground that
no sale deed was executed in favour of Laxmi Narayan Pandit. No
ownership was transferred by the Vishwakarma Maya Vikas Mandal in
favour of Laxminarayan Pandit. Suit property has been mutated in favour of
the appellant and appellant has paid a consideration of Rs. 66,68,000/- and
possession has been handed over to the appellant/defendant No.7 by
respondents No. 5 to 6. Respondent No.7/plaintiff have never taken the
objection at the time of mutation of the suit property. Respondent
No.7/plaintiff never raised any relief for declaration of right or title of the
suit property. The suit property has already been sold in the year 2018. No
case for temporary injunction was made out before the trial Court and trial
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Court committed error in allowing the application and, therefore, the same
be reversed.
4. Heard.
5. Perused the record.
6. Trial Court has based its conclusion recording the reasons that
disputed property belonged to Laxminarayan Pandit and property was self
acquired property of Laxminarayan Pandit. Plaintiff and defendants No. 1 to
6 are the children of Laxminarayan Pandit and a serious questions between
the parties arises that requires adjudication of the Court and recorded the
findings that primafacie case is made out. Further trial Court concluded that
the balance of convenience and irreparable loss is also find in the favour
plaintiff respondent No.7.
7. On one hand appellant/defendant No.7 is entering into contract of
sale regarding the suit property and he is obtaining the consent of defendant
Nos. 2 and 3 on the other hand he is raising the plea that no formal sale deed
was executed in favour of Laxminarayan Pandit. He cannot be permitted to
blow hot and cold, at the same time.
8. Since, the defendants No.1 to 6 cannot be restrained to alienate
the property to the extent of their share, so trial Court committed error in
putting a total ban on alienation. Trial Court also did not adverted to the fact
that suit was filed on 13.03.2019 and the reply of temporary injunction
application was filed on 06.10.2023, so trial Court ought to have adverted to
the situation where party/parties are not interested in disposal of the suit, but
only for interim relief. This may be addressed limiting the period of
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interlocutory orders. Accordingly, this appeal is partly allowed and the order
dated 03.02.2024 is modified to the extent that defendants No. 1 to 3 shall
not alienate the share of the plaintiff/respondent No.7. This order shall be
effective for a period of one year only. During this period, both the parties
shall close their case. Further extension of injunction shall be considered
by the trial Court only when the delay is not due to the fault of the
plaintiff/respondent No.7.
With the aforesaid, the petition stands disposed of.
No order as to costs.
(GAJENDRA SINGH)
JUDGE
rashmi
