Madhya Pradesh High Court
Shyamkarthik Singh vs Matasharam Singh on 7 March, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 7 th OF MARCH, 2025
MISC. PETITION No. 7151 of 2024
SHYAMKARTHIK SINGH AND OTHERS
Versus
MATASHARAM SINGH AND OTHERS
Appearance:
Shri Anshuman Singh, Advocate for the petitioners.
Shri Ashok Lalwani, Senior Advocate assisted by Shri Pushp Raj
Singh Gaharwar, Advocate & Shri Vidya Shankar Mishra, Advocate for the
Respondents.
ORDER
This Miscellaneous Petition is filed by the Plaintiff Shyamkartik Singh
and Others being aggrieved of order dated 25.8.2023 passed by learned 1st
Civil Judge Junior Division-Deosar, District Singrauli in R.C.S.A
No.212/2022 granting injunction in favour of the Defendant Matasharan
Singh and directing the plaintiff to not to cause interference directly or
indirectly in relation to the property mentioned in Enclosure D-2.
The aforesaid order was put to challenge by the petitioners herein
before the learned 5th District Judge-Deosar, District Singrauli in M.C.A
No.19/2023, who vide order dated 19.11.2024 affirmed the order of the Trial
Court and hence this Miscellaneous Petition.
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Learned counsel for the petitioners submits that no relief could have
been granted in favour of the defendants in the teeth of the provisions as
contained in Order XXXIX Rule 1(c) of the Code of Civil Procedure, 1908
(for short "C.P.C") and in support of his contention, he places reliance on the
Full Bench Decision of the Karnataka High Court in Smt.Shakunthalamma
& Others versus Smt.Kanthamma & Others ILR 2014 KAR 6025 and that of
the Bombay High Court in Nanasaheb S/o Sakharam Bhalekar versus Dattu
S/o Dhondiba Bhalekar and others 1990 SCC OnLine Bom 370 and also the
judgment of the Karnataka High Court in Veerabhadrappa versus Mayappa
1992 SCC OnLine Kar 278 and finally the judgment of the Andhra Pradesh
High Court in Mulla Abdulla Sab versus Karuru Malli 2023 SCC OnLine AP
1740 wherein it is held that no relief can be granted in favour of the
defendant because the language used by the Legislature in Clause (c) of Rule
1 of Order XXXIX of the C.P.C is to the effect that when the defendant
threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in the suit then only injunction can be
granted and the Legislature has not used the language as is used in Clause (a)
giving any authority to any party to the suit to move an application
under Order XXXIX Rule 1(c) of the C.P.C.
Learned Senior Counsel for the respondents in his turn submits that it
is an admitted fact that partition between the parties already took place long
back and some of the lands, which are mentioned in the Schedule enclosed
by the plaintiff, are not only recorded in the Revenue Record in the name of
the defendant but they are in possession thereon. To buttress his claim,
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learned Senior Counsel submits that the defendant is in possession of some
portion of the land, is even admitted by the plaintiff in Paragraph No.11 of
his plaint where he himself has created a doubt by saying that if the Court
finds some portion of the land to be in possession of the defendant then that
possession be restored in his favour. He places reliance on the judgment of
the Kerela High Court in Vincent & Others versus Aisumma 1988 SCC
Online Ker 40 : AIR 1989 Ker 81 to interpret Clause (a) of Rule 1 of Order
XXXIX of the C.P.C.
I have heard learned counsel for the parties and gone through the
record.
It is necessary to examine the application, which was moved by the
defendant before the Trial Court and the relief sought therein. That
application is available on record as Annexure P/3. In the aforesaid
application, learned counsel for the defendant has categorically mentioned
that the plaintiff while filing a suit has included several Khasra numbers,
which are already recorded in favour of the defendant and on which he is in
possession. A prayer is made that during pendency of the suit, the plaintiff be
restrained either to directly or through any other agency not to cause
disturbance in the peaceful possession of the lands recorded in the name of
the defendant as contained in Enclosure D-2.
When the aforesaid prayer is examined in the light of the averments
made in the plaint then it is evident that the plaintiff has not stated anywhere
that he is under the threat of being dispossessed by the defendant and,
therefore, apparently the provisions as contained in Clause (c) of Rule 1 of
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Order XXXIX of the C.P.C will not be invokable.
Learned counsel for the petitioners has though tried to read it in
reverse to imply that a defendant on being threatened to be dispossessed
cannot claim any relief in the teeth of Clause (c) of Rule 1 of Order XXXIX
of the C.P.C but fact of the matter is that when the plaintiff himself claims
that he is in peaceful possession of the suit land as is mentioned by him in
Paragraph No.10 of the plaint but when the defendant prima facie could
establish through record that a partition had taken place between the plaintiff
and the defendant and they are not only in peaceful possession of the lands,
which are disputed by them as are mentioned in Enclosure D-2 but have also
been able to demonstrate that their names are mentioned in the Revenue
Record on the basis of the said partition deed then it is evident that the case
of the defendant will fall within the parameter of Clause (a) of Rule 1 of
Order XXXIX of the I.P.C inasmuch as it provides that any property in
dispute in a suit is in danger of being wasted, damaged or alienated by any
party to the suit or wrongfully sold in execution of a decree then use of the
word ''any party'' will entitle the defendant to claim a relief of being not
wrongfully dispossessed from their property, which is duly recorded in their
name during pendency of the trial and, therefore, though it is not mentioned
in the impugned orders but when the impugned orders are examined then
they appear to have been passed in exercise of the authority vested in the
Courts under Clause (a) of Rule 1 of Order XXXIX of the C.P.C and not
under Clause (c) of Rule 1 of Order XXXIX of the C.P.C and the same
cannot be faulted with.
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Accordingly, this Miscellaneous Petition fails and is dismissed.
(VIVEK AGARWAL)
JUDGE
amit
