Madhya Pradesh High Court
Laxman Patidar vs Vikaram Bai on 10 September, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:25930
1 MP-2544-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
MISC. PETITION No. 2544 of 2025
LAXMAN PATIDAR AND OTHERS
Versus
VIKARAM BAI
Appearance:
Shri Aditya Verma - Advocate for the petitioners.
Shri Vikas Singh Parihar and Shri Lakhan Singh Panwar - Advocate for the
respondent.
Heard on : 18.08.2025
Pronounced on : 10.09.2025
ORDER
This petition under Article 227 of the Constitution of India, has been
preferred by the petitioner assailing the order dated 09.05.2025 passed by Second
Additional District Judge, Dharmpuri, District - Dhar in RCS No.31A/2024,
whereby the appeal filed by the respondent under Order 43 Rule 1 of CPC has
been allowed and the stay granted in favour of the petitioner has been vacated.
2. The case of the petitioner/defendant in nutshell is that, the residential house of
petitioners/plaintiffs is built on the northern ridge of village Sunderel, Tehsil
Dharampuri, District Dhar and to the south of his house, there is disputed land
measuring 0.0630 and 0.0630, total area 0.126 hectare, on which towards the land
survey No. 117/1 and 117/2 owned and possessed by the petitioners/plaintiffs , a 63 ft
x 35 ft old mud fence was built, which has collapsed due to being dilapidated, and on
NEUTRAL CITATION NO. 2025:MPHC-IND:25930
2 MP-2544-2025
about 63 ft x 17 ft portion (disputed place) on the south side of the said fence, a
thatched hut of the plaintiffs was built, which is currently broken and has been
converted into a plot of land at the spot. The hut constructed by the
plaintiffs/petitioners at the disputed site was given to the respondent/defendant for use
to store agricultural goods about 3 years ago, but it was converted into a disputed site
as it was broken during the customary week of July. The respondent/defendant started
digging pits to carry out permanent construction work at the disputed site without the
prior permission of the petitioners/plaintiffs and he was demanded to be stopped.
Despite an application filed by the petitioner no.1/plaintiff on 18.07.2024 in this regard,
the respondent/defendant did not stop the construction work. It is further alleged that
the defendant/respondent threatened the petitioner to kill.
3. The Petitioners/plaintiffs instituted a suit for declaration of title over
disputed place and for restraining the Respondent from raising any illegal
construction. Respondent/defendant, filed his Written Statement and refuted to the
averments of the plaint. Thereafter, the Trial Court framed the issues. At present
the suit is at the stage of Plaintiff Evidence. Petitioners/plaintiffs also moved an
application under Order 39 Rule 1&2 R/w Section 151 of CPC, 1908 for
injuncting the respondent/defendant from doing construction at their land which
was allowed by the trial Court and the temporary injunction was granted in
petitioners/plaintiffs' favour by order dated 12.09.2025. Being crestfallen with the
aforesaid order, respondent/defendant filed an appeal before appellate
Court. Appellate court vide order dated 09.05.2025 passed in the Misc. Civil
appeal (MCA 05/2024) vacated the temporary injunction/ stay which was granted
in the favour of petitioners/plaintiffs. Hence being aggrieved, petitioners/plaintiffs
have preferred this miscellaneous petition.
NEUTRAL CITATION NO. 2025:MPHC-IND:25930
3 MP-2544-2025
4. Learned counsel for the petitioner contended that the petitioners/plaintiffs
have right and possession over the suit property, ancestral house situated in village
Sundrel Tehsil Dharampuri, (admeasuring 0.126 hect.), which they had given to the
respondent/defendant about 3 years ago for keeping their agricultural goods, when the
said hut got broken, the respondent/defendant, without prior permission of the
petitioners/plaintiffs, started digging pits for carrying out permanent construction on
said place. Thus the Petitioners/plaintiffs instituted the said suit for declaration of title
over disputed place and for restraining the Respondent/defendant from raising any
illegal construction. The learned Judge of the appellate Court has committed grave
error of law and facts in vacating stay only on the ground the possession of the
respondent/defendant in the suit land, which was given only by the
petitioners/plaintiffs for keeping their agricultural produce/equipments. Counsel further
submitted that learned appellate Court failed to consider that petitioners/plaintiffs are
the true owners of the land in issue where the construction is being
done. Petitioners/plaintiffs have also filed land revenue records showing their
bonafide. The respondent/defendant has claimed the title over the suit land only on the
basis of registry dated 27.03.1981. The learned judge erred in not considering the fact
that there is no land of the petitioners/plaintiffs adjacent to the suit land and the suit
land is completely different from the one claimed by the petitioners/plaintiffs.
Therefore, counsel prayed that the present petition be allowed and order of the learned
appellate Court in vacating the stay, being illegal and impropriety be set aside by
affirming the order of learned trial Court.
5. The stand of the respondent/defendant is that the petitioners'/plaintiffs' house
is inhabited, which the respondent/defendant and brothers had acquired by purchasing
it from Radheshyam father Nandram Mahajan on 27.03.1981 for Rs. 45,000/- through a
registered sale deed. The said house was about 40 years old at the time of purchase and
has become weak with time. Therefore, it is being demolished and construction is
NEUTRAL CITATION NO. 2025:MPHC-IND:25930
4 MP-2544-2025
being done at that place on an area less than the area of the previously constructed
house. No land of the petitioners/plaintiffs is being acquired by the
respondent/defendant. Learned appellate court has rightly held that if partial
construction has been done by the respondent and he is stopped from construction
work, thereafter, when finally it is proved that the place was his property, then he will
definitely suffer irreparable loss. Where the title of the respondent/defendant is not
clear or is in doubt, interim injunction should be easily granted to stop the construction
work and unless there is strong prima facie evidence, construction work cannot be
stopped merely on the basis of ownership, especially when the construction can be
demolished at any time if the other side wins the case. Therefore, counsel submitted
that the order passed by the appellate Court is just and proper, does not call for any
interference, hence counsel prayed for dismissal of this petition.
6. I have heard learned counsel for the parties and perused the record.
7. From perusal of record it is alleged by the petitioners/plaintiffs, that the
respondent/defendant has started permanent construction work at the disputed site,
which was given to him by the petitioner in order to store agricultural goods, without
the prior permission of the petitoners/plaintiffs and he was demanded to be stopped.
Whereas the stand of the respondent/defendant is that the defendant and brothers had
acquired the disputed land by purchasing it from Radheshyam father Nandram
Mahajan on 27.03.1981 for Rs. 45,000/- through a registered sale deed. The said house
was about 40 years old at the time of purchase and has become weak with time.
Therefore, it is being demolished and construction is being done at that place on an
area less than the area of the previously constructed house. No land of the
petitioners/plaintiffs is being acquired by the defendant. The petitioners/plaintiffs
approached the trial Court wherein their application filed under Order 39 Rule 1 & 2
was allowed by holding that there is prima facie case against the petitioners/plaintiffs
NEUTRAL CITATION NO. 2025:MPHC-IND:25930
5 MP-2544-2025
and if the respondent/defendant is allowed to carry out construction in the disputed
property, the petitioners/plaintiffs right upon the disputed property would be adversely
effected found that the balance of inconvenience will be in favour of granting
injunction, and hence, the trial Court allowed the application and directed the parties to
maintain the status-quo of the disputed property.
8. Being crestfallen with the aforesaid order, respondent/defendant filed an
appeal before the appellate Court. Appellate Court allowed the appeal and quashed the
trial Court's order on the ground that the petitioners/plaintiffs have not produced
sufficient evidence to prove their right over the disputed property, so also it has been
held that the respondent/defendant has commenced the construction in the suit property
and if he is stopped from further construction, then he would be at irreparable loss if
the disputed property is found to be in the ownership of the respondent/defendant.
Whereas if the petitioners/plaintiffs ownership title is proved upon the disputed
property he would not suffer any irreparable loss and the property can be handed over
to him by demolishing the construction done by the respondent/defendant. Therefore,
in the absence of strong evidence the construction work cannot be stopped merely by
claiming the title, especially when such construction can be demolished any time if the
petitioners/plaintiffs win the case.
9. Order 39, Rules 1 and 2 of the Civil Procedure Code (CPC) empower courts
to grant temporary injunctions to prevent irreparable loss to any party's rights during
the pendency of a lawsuit, based on principles like a prima facie case, balance of
convenience, and the likelihood of irreparable injury. Specifically, Rule 1 outlines
situations where an injunction may be granted, such as when a party attempts to
dispose of property to defraud creditors, while Rule 2 allows for injunctions to stop the
repetition or continuance of a breach of contract or other injury.
10. The primary purpose of temporary injunctions under these rules is to
NEUTRAL CITATION NO. 2025:MPHC-IND:25930
6 MP-2544-2025
maintain the status quo and protect parties from potential damage or injustice until the
court can make a final decision on the merits of the case. The aggrieved party must
show that they have a strong case that appears to have merit. It must be shown that the
aggrieved party will suffer harm that cannot be compensated by monetary damages if
the injunction is not granted. The court must find that granting the injunction will
cause less hardship to the defendant than withholding it would cause to the plaintiff.
11.The legal principle "possession follows title" suggests that possession is
presumed to be with the owner, but a Supreme Court judgment in Nazir Mohamed v. J.
Kamala [AIR 2020 SC 4321 ] clarified that this is a rebuttable presumption that
applies when there is no definite proof of possession by another party. A party seeking
possession must establish their entitlement to it, and a title declaration doesn't
automatically grant possession. The presumption of "possession follows title" is based
on the idea that the owner should be considered in possession. It arises in cases where
there is no clear evidence of possession by someone else. This principle is particularly
useful for things like wastelands or other situations where actual physical possession is
difficult to prove. Hon'ble Supreme Court has emphasized that this is a presumption,
not an absolute rule. It can be rebutted by evidence showing actual possession. It was
also noted that even in land acquisition, the principle can be reversed, with title
following possession. Strong evidence like sale deeds, mutation records, or
assignment deeds is crucial to prove ownership. While receipts and oral evidence can
support claims of possession, they are generally not sufficient to establish ownership
on their own.
12. On this aspect, in the case of Chief Conservator of Forests, Govt. of A.P. v.
Collector & Ors., AIR 2003 SC 1805, Hon'ble Apex Court has held that:
"Presumption, which is rebuttable, is attracted when the possession is
prima facie lawful and when the contesting party has no title."
NEUTRAL CITATION NO. 2025:MPHC-IND:25930
7 MP-2544-2025
13. A Bench of three Judges of the Supreme Court in Shiv Kumar Chadha v.
Municipal Corporation of Delhi, [1993 SCC (3) 161], held that "a party is not entitled
to an order of injunction as a matter of course. Grant of injunction is within the
discretion of the court and such discretion is to be exercised in favour of the plaintiff
only if it is proved to the satisfaction of the court that unless the defendant is restrained
by an order of injunction, an irreparable loss or damage will be caused to the plaintiff
during the pendency of the suit. The purpose of temporary injunction is, thus, to
maintain the status quo. The court grants such relief according to the legal principles -
ex debito justitiae. Before any such order is passed the court must be satisfied that a
strong prima facie case has been made out by the plaintiff including on the question of
maintainability of the suit and the balance of convenience is in his favour and refusal of
injunction would cause irreparable injury to him. Further the court should be always
willing to extend its hand to protect a citizen who is being wronged or is being
deprived of a property without any authority in law or without following the procedure
which are fundamental and vital in nature. But at the same time the judicial
proceedings cannot be used to protect or to perpetuate a wrong committed by a person
who approaches the court."
14. Mere satisfaction that there is a prima facie case by itself is not sufficient to
grant injunction. The court further has to satisfy that non-interference by it would result
in "irreparable injury" to the party seeking relief and that there is no other remedy
available to the party except one to grant injunction and he needs protection from the
consequences of apprehended injury. Irreparable injury, however, does not mean that
there must be no physical possibility of repairing the injury, but means only that the
injury must be a material one, namely, one that cannot be adequately compensated by
way of damages. Since purpose of temporary injunction is to maintain status quo,
court, while granting such relief, should be satisfied that prima facie case has been
made out and balance of convenience is in favour of the plaintiff and refusal of
NEUTRAL CITATION NO. 2025:MPHC-IND:25930
8 MP-2544-2025
injunction would cause irreparable loss and injury to him.
15. In the present case, both the parties have submitted documents in proof of
their ownership. The dispute is that the land where construction is being carried out in
the same land of the petitioner or in a different land, which shall be decided at the time
of evidence. The construction work of the respondent/plaintiff is in halfway progress
and not fully completed, if the temporary injunction is granted to the petitioner and the
construction is stayed, later on if the suit is decreed in favour of the
respondent/plaintiff, the construction can be commenced, which would not cause any
irreparable loss to them. Whereas, if the respondent raises construction in the suit
property and if the case is decreed in favour of other side, then the construction will
have to demolished, which, admittedly, would cause irreparable loss to both the
parties.
16. In the light of the law laid down by Hon'ble Supreme Court in the
judgments referred above, I am of the considered opinion that findings of fact
recorded by the appellate Court is perverse and liable to be set aside. The
miscellaneous petition succeeds and is allowed. The judgment of appellate Court
is hereby set aside by affirming the order passed by trial Court. Parties are
directed to maintain the status quo of the suit property as it exists today till the
pendency of the trial.
17. Pending I.As., if any, stand closed.
(ALOK AWASTHI)
JUDGE
sumathi
