Devendra Singh Raghuvanshi vs Veer Singh
2025 Latest Caselaw 467 MP

Madhya Pradesh High Court

Devendra Singh Raghuvanshi vs Veer Singh on 7 May, 2025

Author: Gurpal Singh Ahluwalia

Bench: G. S. Ahluwalia

         NEUTRAL CITATION NO. 2025:MPHC-GWL:10115




                                                            1                               MP-1991-2025
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                         BEFORE
                                          HON'BLE SHRI JUSTICE G. S. AHLUWALIA
                                                  ON THE 7 th OF MAY, 2025
                                               MISC. PETITION No. 1991 of 2025
                                            DEVENDRA SINGH RAGHUVANSHI
                                                        Versus
                                               VEER SINGH AND OTHERS
                         Appearance:
                                 Shri Abhishek Singh Bhadauria - Advocate for petitioner.

                                 Shri Jitesh Sharma - Government Advocate for State.

                                                                ORDER

This petition under Article 227 of Constitution of India has been filed against the order dated 26.03.2025 passed by II Additional District Judge to the Court of First District Judge, Ganjbasoda, District Vidisha in R.C.A. No.8/2025 by which an application filed under Order 41 Rule 5 of CPC has been rejected.

2 . It is submitted by counsel for petitioner that against the judgment and decree dated 10.02.2025 passed by III Civil Judge Senior Division

Ganjbasoda District Vidisha in Regular Civil Suit No.71A/2021, petitioner has filed Regular Civil Appeal No.8/2025. Trial Court by judgment and decree dated 10.02.2025 had held that plaintiff/respondent is in possession of the property in dispute i.e. Araji No.222,223,224 total area 0.523 hectares out of 2.864 hectares and appellant was restrained from interfering with peaceful possession of plaintiff either by himself or through his agent. It is

NEUTRAL CITATION NO. 2025:MPHC-GWL:10115

2 MP-1991-2025 submitted that an application under Order 41 Rule 5 of CPC was filed for stay of execution of decree. The appellate Court directed for demarcation of land and after receiving the demarcation report, application filed under Order 41 Rule 5 of CPC has been rejected.

3. At this stage, it is submitted by counsel for petitioner that he may be permitted to withdraw the application which was filed by him under Order 41 Rule 5 of CPC before the appellate Court.

4. Heard learned counsel for the parties.

5. Once petitioner had taken his chance before the appellate Court and having failed in the same, he cannot be permitted to withdraw his application filed under Order 41 Rule 5 of CPC. Accordingly, the prayer to withdraw the application which was filed by petitioner before the appellate Court is hereby

rejected.

6 . It appears that the trial Court has given a specific finding that plaintiff is in possession and accordingly decree of permanent injunction was passed against the petitioner. Whether the appellate Court could have directed for fresh demarcation prior to adjudication of the application under Order 41 Rule 5 of CPC or not is highly debatable question.

7 . In the considered opinion of this Court, the application filed under Order 41 Rule 5 of CPC should have been decided on the basis of material available on record. It is the case of petitioner that neither the petitioner nor the respondent filed an application for fresh demarcation and the appellate Court had directed for fresh demarcation on its own. Findings recorded by the trial Court can be reversed by the appellate Court only by

NEUTRAL CITATION NO. 2025:MPHC-GWL:10115

3 MP-1991-2025 passing the final judgment and the same cannot be interfered with at the stage of under Order 41 Rule 5 of CPC by collecting fresh evidence. The appellate Court after considering the reasons assigned by the trial Court may have passed an order of stay of execution of decree but the appellate Court cannot collect the fresh evidence at the stage of under Order 41 Rule 5 of CPC to adjudicate as to whether findings of fact recorded by the trial Court are correct or not? Furthermore, according to petitioner, neither the petitioner nor the respondents had filed an application for fresh demarcation.

8. Under these circumstances, this Court is of the considered opinion t h a t suo moto exercise of powers by the appellate Court for fresh demarcation at the stage of under Order 41 Rule 5 of CPC was unwarranted. Even otherwise the application filed by the petitioner under Order 41 Rule 5 of CPC has been rejected by the appellate Court.

9. Under these circumstances, this Court would not like to dwell upon the jurisdiction of appellate Court at the stage of under Order 41 Rule 5 of CPC. Accordingly, the petition fails and is hereby dismissed.

(G. S. AHLUWALIA) JUDGE

Rashid