Madhya Pradesh High Court
Smt Mahadevi Verma(Kushwah) @ Teeko W/O ... vs Suresh Singh Kushah on 5 May, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:9831
1 MP-2260-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 5 th OF MAY, 2025
MISC. PETITION No. 2260 of 2025
SMT MAHADEVI VERMA(KUSHWAH) @ TEEKO W/O LATE SHRI
BHAGWAN SINGH
Versus
SURESH SINGH KUSHAH AND OTHERS
Appearance:
Shri Yash Sharma - Advocate for the petitioner.
ORDER
The present petition under Article 227 of the Constitution of India is
directed against the order dated 09.04.2025 passed by XIth Civil Judge,
Junior Division, Gwalior in RCSA No.203/2025, whereby an application
preferred by the present petitioner under Section 151 of CPC for restraining
the respondents/defendants from dispossessing plaintiffs from the suit
property, not to alienate the suit property and to take the possession of the
suit property during the pendency of the suit, has been rejected.
2. Learned counsel for the petitioner has argued before this Court that
grave error has been committed by the learned Trial Court in rejecting the
application as it was an admitted position that demarcation proceedings were
continuing before the revenue authorities and under the garb of those
proceedings and getting wrong entries in the revenue records, the
respondent/defendant wants to alienate the property, thus, would cause
prejudice to the case of the petitioner, and if the property is sold or
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petitioner/plaintiff is dispossessed, the entire purpose of filing the suit would
get frustrated. Thus, an innocuous prayer has been made by the counsel for
the petitioner by filing present application that till filing of reply defendants
may be restrained from dispossessing the petitioner or be restrained from
alienating the suit property, but the said application has been rejected by the
learned Trial Court which is per se illegal.
3. Learned counsel while placing reliance in the matter of Hari Singh
and Ors. vs. The State of M.P. and Ors. passed in W.P. No.9792/2020 dated
23.07.2020 had argued that when a civil suit is pending between the parties
and the application under Order 39 Rule 1 and 2 CPC is not decided and the
defendants are trying to interfere with the peaceful possession of the
plaintiff, then restraining the defendants from interfering with the peaceful
possession of the plaintiff, application under Section 151 of CPC could be
filed.
4. Learned counsel has also placed reliance in the matter of Bheekam
Singh vs. Gautam Mallah passed in M.P. No.5039/2023 dated 12.09.2023
and has argued that when the matter at civil side has not been finalized and is
pending in second appeal, the Tehsildar or any other revenue authority had
no jurisdiction to entertain any application for mutation.
5. On the basis of the aforesaid arguments, learned counsel has
submitted that an application under Section 151 for restraining the
defendants from interfering with the peaceful possession of the plaintiffs
should have been allowed and a restrained order should have been issued.
6. Heard the counsels for the parties and perused the record.
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7. Admittedly, a Civil Suit for declaration declaration of title and
possession with regard to survey no.1012 and 1013 situated at village-
Girwai, Patwari Halka No.26 Tehsil and District Gwalior is pending between
the parties. In the aforesaid suit an application under Order 39 Rule 1 and 2
CPC is also pending. In the midst of the proceedings of Civil Suit the present
respondents/defendants have filed an application for demarcation of the
survey numbers before the Tehsildar invoking provisions under Section 129
of the MPLRC. Though Tehsildar had observed in its proceedings that with
regard to the same survey numbers a civil suit is pending, but instead of
keeping the proceedings in abeyance had moved forward to conduct the
demarcation proceedings which was per se illegal, therefore, till the decision
on the application under Order 39 Rule 1 and 2 is made, it was prayed before
the Trial Court that restrained order be passed against the
respondents/defendants not to interfere with his peaceful possession or
alienate the suit property, but learned Trial Court had rejected the application
on the ground that the factum of eviction of the petitioner/plaintiff from the
suit property for alienation of the suit property has only been orally averred
and apart from that it has been observed that since the demarcation
proceedings are being conducted by the respondents/defendants, therefore,
the petitioner/plaintiff had presumed that under the garb of demarcation the
petitioner/plaintiff would be evicted from the suit property or the property
would be alienated, but as from the material available, it is not evident that
the respondent/defendant is any way trying to evict the petitioner/plaintiff
from the suit property or is trying to alienate the property to the third party,
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therefore, the application being mis-conceived is liable to be dismissed and
accordingly, was rejected.
8. This Court after going through the impugned order and going
through the reasoning given by the learned Trial Court finds that no illegality
or perversity has been committed in rejecting the application. Since no
prayer for keeping the proceedings of Revenue Courts in abeyance has been
sought, there was no necessity for the learned Trial Court to had gone into
the aforesaid aspect.
9. So far as the judgments cited by the learned counsel for the
petitioner/plaintiff since are based on different facts are of no help and the
petition being sans merit is hereby dismissed.
10. At this juncture, learned counsel for the petitioner has prayed that
the suitable directions be issued to the learned Trial Court to decide the
application under Order 39 Rule 1 and 2 CPC.
11. Prayer appears to be reasonable, the learned Trial Court is directed
to decide the application under Order 39 Rule 1 and 2 CPC as expeditiously
as possible without giving any undue adjournments to the parties.
(MILIND RAMESH PHADKE)
JUDGE
Chandni
