[Cites 3, Cited by 0]
Madhya Pradesh High Court
Brajmohan vs Gopal on 29 January, 2026
NEUTRAL CITATION NO. 2025:MPHC-IND:35254
1 MA-6648-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
MISC. APPEAL No. 6648 of 2023
BRAJMOHAN AND OTHERS
Versus
GOPAL AND OTHERS
Appearance:
Shri Akhil Godha, learned counsel for the appellants.
Shri Chetan Jain, learned counsel for respondents No.1, 2 and 4 to 10.
Shri Manu Maheshwari, learned counsel for respondent No.3 and 11.
ORDER
Heard on : 02.12.2025
Pronounced on : 29.01.2026
.................................................................................................................
The present Misc. Appeal has been filed in terms of Order XLIII Rule 1(r) of the
Code of Civil Procedure, 1908 being aggrieved by the order dated 11.10.2023 passed
by the II District Judge Narsinghgarh, District Rajgarh in Regular Civil Suit No.01-
A/2023, whereby the application filed by the appellants under Order XXXIX Rule 1
and 2 of the Code of Civil Procedure was dismissed.
2. The facts giving rise to the case are that appellants No.1 and 2 filed a suit for
declaration and permanent injunction and for cancellation of sale deed on the basis of
family settlement executed on 06.04.2018 against the respondents/defendants.
2.1 The description of the suit properties is provided in para 1 of the appeal
memo. The appellants/plaintiffs stated in the plaint that the suit properties are the
properties of a Joint Hindu Family. However, as there was huge bank loan, a mutual
settlement was reached and a written family settlement was executed on 06.04.2018
under which all the properties were given to the plaintiffs and in lieu thereof, the
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plaintiffs were required to repay the loan outstanding against the defendants.
Accordingly, it was claimed in the plaint that based on the said family settlement, the
appellants/plaintiffs are the owners of the suit properties.
2.2 It was further stated in the plaint that on 02.01.2021, respondent No.6 gifted
land admeasuring 0.632 hectares of Survey No.198/2/2, 0.342 hectares of Survey
No.200/1 and 2.543 hectares of Survey No.201 to respondent No.3. These properties
were also subject to the family settlement and therefore could not have been gifted by
respondent No.6 to respondent No.3. Similar allegations were made with respect to
other properties in the plaint.
2.3 It was further averred in the plaint that half portion of the commercial
building situated near Bank of India, one grinding machine, a generator and the
weighbridge at Mandi were given to respondent No.1 and all the remaining movable
and immovable properties, whether recorded in joint or individual names were given to
the appellants/plaintiffs. Accordingly, the appellants/plaintiffs were saddled with the
liability to repay the loan outstanding against the suit properties. It was also stated that
as per the family settlement agreement, the outstanding amount was to be repaid within
10 to 15 months.
2.4 The appellants/plaintiffs stated that the loan amount was repaid except for
one amount, which is the subject matter of dispute before the DRT. It was further
stated that even after the execution of the family settlement dated 06.04.2018, the
defendants attempted to alienate the property due to which the suit was filed. Along
with the suit, an application under Order XXXIX Rule 1 and 2 of the CPC was
filed seeking temporary injunction restraining the defendants from alienating the suit
property during the pendency of the suit.
2.5 The respondents/defendants contested the suit and denied the allegations
made by the appellants/plaintiffs. It was specifically stated in the written statement
particularly in paras 22 and 23 that although the family settlement was executed on
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06.04.2018 a registered sale deed in respect to one of the properties had already been
executed on 08.12.2012. The appellants/plaintiffs did not raise any objection at the time
of execution of the said sale deed. Even mutation pursuant to the said sale deed was
carried out in favour of respondent No.7 Govind Prasad Maheshwari and no objection
was raised by the appellants/plaintiffs in those proceedings as well.
2.6 It was further argued that the family settlement was only with respect to Joint
Hindu Family property and not with respect to individual properties and also that the
appellant has failed to discharge his obligation with respect to family settlement. The
outer limit for payment in some cases was 9 to 12 months and in other cases was 12 to
15 months. However, the same was not repaid within time, thus, the agreement no
more remains binding upon the members of the family.
2.7 Learned trial Court after considering the rival submissions passed the
impugned order on 11.10.2023, whereby it rejected the application filed by the
plaintiffs filed under Order XXXIX Rule 1 and 2 of the CPC. The trial Court, after
considering the rival submissions, passed the impugned order on 11.10.2023, whereby
it rejected the application filed by the plaintiffs under Order 39 Rules 1 and 2 of the
CPC, the learned trial Court observed in para 22 that the plaintiffs have not repaid the
loan amount within the stipulated period of 15 months. Consequently, the property of
respondent No.1/defendant No.1 was being attached by the bank. In such
circumstances, defendant No. 1 had the right to sell the property to repay the
outstanding amount. In view of these findings, the Court held that no prima facie case
was made out and therefore rejected the application.
3. Learned counsel for the appellants while referring to Annexure A/4 submits
that in para 17 of the impugned order, the trial Court itself has found that a family
settlement was executed on 06.04.2018. However, despite recording this finding, the
Court refused to grant interim relief.
3.1 Learned counsel while referring to I.A. No.8629/2023, which was filed for
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taking additional documents on record submits that as per the family settlement, all the
properties of the Joint Hindu Family were allotted to the appellants/plaintiffs.
Therefore, any alienation made subsequent to the execution of the family settlement
was per se illegal. Therefore, any alienation made subsequent to the execution of the
family settlement was per se illegal. In these circumstances, the trial Court ought to
have restrained the respondents from alienating the suit property
3.2 He further submits that the appellants have paid the entire loan amount
except the amount which is the subject matter of dispute before the DRT, and therefore
the same could not have been paid.
3.3 He also submits that in their reply particularly in para 22, the respondents
have denied everything that was agreed upon in the family settlement, despite the loan
having been repaid by the appellants. Thus, the conduct of the respondents shows that
on one hand, they accept that the appellants/plaintiffs repaid the loan amount, but on
the other hand, they are not ready to abide by their obligations under the family
settlement. He therefore submits that, in view of the clear facts of the case and the
admitted execution of the family settlement, the Court ought to have protected the
appellants by granting a temporary injunction.
4. Per contra, learned counsel for respondents No.1, 2 and 4 to 10 submits that
time was the essence of the contract. He argues that the family settlement was
restricted to the properties of the Joint Hindu Family and not to the individual
properties. Referring to para 4 of the settlement, he submits that a time span of 10 to 15
months was provided, 10 to 12 months for individual loans and 15 months for the bank
loan.
4.1 He submits that in the first case, the period expired on 05.04.2019 and in the
second case, the period expired on 05.07.2019; however, the appellants failed to repay
the amount. He therefore submits that in view of the clear terms of the family
settlement specifically that rights in the property would be created only upon
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repayment of the loan within the stipulated period and as the appellants failed to repay
the amount within that time, they have no rights at all. Consequently, there is complete
absence of any prima facie in their favour.
4.2 He further submits that a careful reading of the plaint would show that there
is only a vague averment in para 13 stating that except for the amount pending before
the DRT, all the loans have been repaid. However, the fact remains that none of the
amounts were actually repaid. This is the reason the appellants have not specifically
detailed the repayment of loans and have instead made only brief and vague averments.
4.3 He further submits that not a single document showing repayment of the loan
within the stipulated period has been placed on record. He also points out that the
family settlement was executed in 2018, while the sale deed was executed in 2021. The
present civil dispute was filed in 2023. Thus, in view of the law laid down by this Court
in the case of Suman Chouksey vs. Dinesh Kumar and Others in 2019 (4) MPLJ 393,
there is no existence of prima facie case in favour of the appellants.
4.4 Supporting the submissions made by the learned counsel for the respondents
mentioned above, learned counsel for respondent No.3 and 11 submits that para 13 of
the plaint is a bald statement made without any particulars; thus, the bona fides of the
appellants were not established prima facie. There is no averment regarding when the
loan amount was paid and how much was paid. Although some documents have been
filed, they only show the taking of the loan and not its repayment; therefore, it cannot
be presumed that the appellants/plaintiffs have repaid the loan amount.
4.5 He further submits that in fact the case of irreparable loss was with the
defendants as their residential house was at stake. If they had not sold the property
voluntarily, their house would have got attached. Hence, they were compelled to sell
the property to save their residential house.
4.6 In support of his submissions, he has placed reliance on the judgment of the
Hon'ble Apex Court in the case of Dalpat Kumar and Another vs. Prahlad Singh and
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Others in (1992) 1 SCC 719 and in the case of Wander Ltd. vs. Antox India P. Ltd. in
1990 SCC (Supp) 727.
5. In their rejoinder submissions, learned counsel for the appellants refers to
certain payments made by them as indicated in the documents filed in Annexure A/1
and submits that a substantial amount has been paid by the appellants.
6. Heard learned counsel for the parties and perused the record.
7. The trial Court while considering the application filed under Order XXXIX
Rule 1 and 2 of the CPC specifically recorded in paras 21 to 23 that the appellants had
undertaken the responsibility to repay the loan of respondent No.1 Gopal within a
period of about 9 to 12 months in the case of individual loans and 12 to 15 in the case of
bank loans.
8. It was also noted that if the loans were not repaid within this period, the
properties detailed in the family settlement would be deemed to belong to respondent
No.1 Gopal and he would have right to sell them to recover the loan amount.
9. Learned trial Court further observed in para 22 that the plaintiffs did not place
on record any document showing that by 06.07.2019 (the date on which the 15-month-
period had expired), the loans had been repaid. It was specifically observed that there
was neither any document nor affidavit to this effect. Consequently, the bank was
attaching the property of defendant No.1 for sale to recover the loan amount. In view of
these circumstances, the application under Order XXXIX Rule 1 and 2 of the CPC was
rejected.
10. This Court has also perused the documents filed by the appellants. A careful
examination of these documents, which allegedly show repayment of the loan reveals
that except for a few payments made in 2019, most of the payments were made in
2023. This clearly demonstrates that the appellants did not place any material before
the trial Court regarding repayment of the loan by 05.07.2019. In view of the clear
stipulations in the family settlement, the properties reverted to Gopal.
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11. While considering an appeal filed under Order XLIII Rule 1(r) of the CPC,
this Court must determine whether there was any material irregularity in the trial
Court's consideration of the application filed under Order XXXIX Rule 1 and 2 of the
CPC and not substitute its own opinion. Having considered the matter and finding no
perversity in the conclusions drawn by the learned trial Court, this Court is of the
opinion that there is no infirmity in the impugned order. Consequently, the present
appeal fails and is hereby dismissed.
No order as to costs.
Certified copy as per rules.
(PAVAN KUMAR DWIVEDI)
JUDGE
Anushree
