Madhya Pradesh High Court
Narendra Agrawal vs Suresh Kumar S/O Motilal Agrawal ... on 24 March, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:8271
1 CR-809-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 24th OF MARCH, 2025
CIVIL REVISION No. 809 of 2024
NARENDRA AGRAWAL AND OTHERS
Versus
SURESH KUMAR S/O MOTILAL AGRAWAL DECEASED THROUGH
LRS SMT. SUMITRA AGRAWAL AND OTHERS
Appearance:
Shri Rohit Kumar Mangal - Advocate for the applicants.
Shri Ramesh Sonvane - Advocate for the respondent No.4.
ORDER
This is a civil revision filed by the defendants challenging the order
dated 09.08.2024 passed by 21st Additional Judge of First Civil Judge,
Junior Division, Indore, whereby application under Order VII Rule 11 of
CPC has been dismissed. The respondent No.1 filed a suit for permanent
injunction against two co-owners on the cause of action that they are trying
to alienate the part of the co-parsener property.
02. According to the plaintiff, till date no partition has taken place,
therefore, the defendants have no right to alienate the suit property and
dispossess the plaintiff. The defendant appeared and filed an application
under Order VII Rule 11 of CPC on the grounds that, firstly, the court fees as
per market value of the property has not been paid, secondly , suit for the
relief of permanent injunction without seeking declaration of title is not
maintainable. vide order dated 09.08.2024, the learned Court has dismissed
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the application hence, this present revision before this Court.
03. Learned counsel for the applicants submits that apart from the
plaintiffs and defendant Nos.1 and 2, there are several other co-owners of the
property in question. The suit property was initially owned by Laxminarayan
and his wife Laxmibai, they had two sons namely Mannalal and Avantilal
and one daughter namely Rampyaribai. There are several legal heirs in the
family, but none of them have been impleaded as defendant in the suit.
Admittedly, the partition has not taken place, therefore, the suit for
declaration of title is not maintainable.
04. In support of his contention, learned counsel has placed reliance of
the judgments passed by the Hon'ble Apex Court in the case of Pyarelal V/s
Nandlat reported in 1982 0 MPWN 27, judgment passed by the High Court
of M.P. in the case of Ghisya and others V/s Shyama, 1997 RN 19 and
Manoj Kapoor V/s Dr. Pankaj Kapoor and others in Civil Revision No.201
of 2020.
05. In reply, the respondents have placed reliance on the judgments
passed by the Hon'ble Apex Court in the case of Anathula Sudhakar V/s P.
Buchi Reddi (dead) By Lrs. and others, (2008) 4 Supreme Court Cases 594,
Kirpa Ram (Deceased) Through Legal Representatives and others V/s
Surendra Deo Gaur and others, AIR 2021 Supreme Court 57 and Masilamani
V/s Mani alias Vanithamani and others, AIR 2024 Madras 131 in which the
Court has held that the suit for permanent injunction is maintainable in a
given facts and circumstances.
06. The Apex Court in case of Anathula Sudhakar (supra) has
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answered the specific question whether the plaintiff's suit for permanent
injunction without seeking declaration of title is maintainable under the law.
Para 21 of the judgment is reproduced below:
21. To summarize, the position in regard to suits for prohibitory
injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have
possession, a suit for declaration and possession, with or without a
consequential injunction, is the remedy. Where the plaintiff's title is
not in dispute or under a cloud, but he is out of possession, he has to
sue for possession with a consequential injunction. Where there is
merely an interference with plaintiff's lawful possession or threat of
dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with
possession, normally the issue of title will not be directly and
substantially in issue. The prayer for injunction will be decided with
reference to the finding on possession. But in cases where de jure
possession has to be established on the basis of title to the property, as
in the case of vacant sites, the issue of title may directly and
substantially arise for consideration, as without a finding thereon, it
will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction,
unless there are necessary pleadings and appropriate issue regarding
title [either specific, or implied as noticed in Annaimuthu Thevar
(supra)]. Where the averments regarding title are absent in a plaint and
where there is no issue relating to title, the court will not investigate or
examine or render a finding on a question of title, in a suit for
injunction. Even where there are necessary pleadings and issue, if the
matter involves complicated questions of fact and law relating to title,
the court will relegate the parties to the remedy by way of
comprehensive suit for declaration of title, instead of deciding the
issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and
appropriate issue relating to title on which parties lead evidence, if the
matter involved is simple and straight-forward, the court may decide
upon the issue regarding title, even in a suit for injunction. But such
cases, are the exception to the normal rule that question of title will not
be decided in suits for injunction.
But persons having clear title and possession suing for injunction,
should not be driven to the costlier and more cumbersome remedy of a
suit for declaration, merely because some meddler vexatiously or
wrongfully makes a claim or tries to encroach upon his property. The
court should use its discretion carefully to identify cases where it will
enquire into title and cases where it will refer to plaintiff to a more
comprehensive declaratory suit, depending upon the facts of the case.
07. The answer for the aforesaid question is in Para 21(d), according to
the plaintiff, the property is a joint property and the respondent Nos.2 and 3
NEUTRAL CITATION NO. 2025:MPHC-IND:8271
4 CR-809-2024
are trying to create a third party right and they are liable to be restrained
because the partition has not taken place in the family. The applicants /
defendants have not pleaded a fact in application under Order VII Rule 11 of
CPC as well as this revision that the partition had taken place and they are
trying to sale their share, therefore, the suit for injunction simpliciter is
maintainable to protect title and possession in a given facts and
circumstances.
08. In view of the above, this Civil Revision stands dismissed.
(VIVEK RUSIA)
JUDGE
Divyansh
