Madhya Pradesh High Court
Kedar Prasad Mishra And Anr. vs Dadan Prasad Mishra And Ors. on 18 May, 2005
Equivalent citations: 2006(2)MPHT162
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. The respondent No. 1 initiated a civil action forming the subject-matter of Civil Suit No. 36-A/2001 before the learned Third Civil Judge Class-II, Satna against the petitioners and the respondent Nos. 2 to 16 for declaration of right, title and interest for permanent injunction on the foundation that he has perfected his title by prescription in respect of area admeasuring 2.09 acres situate at Khasra No. 427 and area admeasuring 0.35 acres situated at Khasra No. 428, mouja-Jaitwara, area admeasuring 2.49 acres Khasra No. 645 of mouza Hatiya, Tehsil Raghuraj Nagar. An application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed before the Court below seeking temporary injunction. The said prayer was resisted by the respondent No. 2 on the base that the disputed lands were ancestral property and the plaintiff in collusion with the Patwari has mutated his name in a forged manner which has been assailed before the competent revenue. The question of possession was totally disputed.
2. The present petitioners who are respondent Nos. 16 and 17 filed a written statement stating, inter alia that the property was mortgaged with the predecessors in interest of the respondent Nos. 2 to 14 which was subsequently came to be possessed by the respondent No. 16 on payment of money and presently the respondent No. 1 and petitioners came to be in joint possession of the property during the life time of one Bhaiyalal. The sole ownership as claimed by the respondent No. 1 has also been disputed. It was also putforth that the plea of adverse possession was totally incorrect and in fact, no right, title and interest flowed in favour of the plaintiff. The Court of first instance came to hold that the plaintiff had not prima facie been able to establish possession for more than 12 years and hence, an injunction was not to be granted in his favour as there was no prima facie case. The learned Trial Judge also recorded that the plaintiff has failed to prove irreparable injury and balance of convenience did not accrue in his favour. Against the aforesaid order the plaintiff-petitioner preferred a Misc. Civil Appeal No. 69/2002 which came to be disposed of by the learned First Additional District Judge, Satna, vide impugned order dated 18-9-2003 came to hold that the plaintiff has got settled possession and, therefore, he was entitled to interim injunction. Being of this view he dislodged the order passed by the Court of first instance and directed the respondent Nos. 2 to 16 and the present petitioners not to interfere in his possession. The said order is the subject-matter of assail in the present writ petition.
3. Despite service of notice there has been no appearance by the plaintiff-respondents.
4. I have heard Mr. A.D. Mishra, learned Counsel for the petitioners. It is contended by the learned Counsel for the petitioners that the learned Appellate Judge has grossly erred in law by coming to hold that the plaintiff was in possession for more than 10 years, though there is no material to come to such a conclusion. The learned Counsel has criticised the order passed by the learned Appellate Judge that he has not been able to appreciate the real cavil between the parties. It is his further submission that the finding with regard to irreparable injuries recorded by the learned Trial Judge was overturned by the learned Appellate Judge without ascribing cogent reasons. To appreciate the submissions raised by Mr. Mishra, I have carefully perused the orders passed by the Courts below. The learned Trial Judge referred to the affidavit filed by the plaintiff and the mutation records and came to hold that the possession rested with the plaintiff and further that there was a concession in favour of the plaintiff to the effect that possession was from a particular year 1991-92. The learned Trial Judge came to hold that the plea of adverse possession was prima facie not tenable. The learned Appellate Judge came to hold that the clear-cut finding of the Trial Judge that the possession prima facie has been rested with the plaintiff for some years and in view of that he passed the order of injunction was warranted. It is worthwhile to note that this Court granted stay till next date of hearing it was continued, thereafter notices were issued. True it is, the plaintiff-respondent had not appeared in this writ petition. The finding of the learned Trial Judge and the Appellate Judge clearly show that the plaintiff was in possession. The learned Trial Judge has gone by the fact that the plea of adverse possession has not been established but he has recorded the finding that the plaintiff has been in possession for number of years. Though said order had been passed thereafter continued. Be that as it may, when the finding of possession has been given by both the Courts, I am of the considered view, there was prima facie case in favour of the plaintiff and the learned Trial Judge has erred in law by giving the finding that there was no balance of convenience and no irreparable injury would be caused, the learned Appellate Judge has rightly overturned the same by holding that there being long possession, the plaintiff was entitled to an order of injunction. He has also ascribed cogent reasons to show balance of convenience, was tilted in favour of the plaintiff from irreparable injuries.
5. In view of the aforesaid I do not perceive any error in the order passed by the learned Appellate Judge in setting aside the order passed by the learned Trial Judge. I may hasten to clarify that the learned Trial Judge shall not be influenced by the findings recorded by the learned Appellate Judge and affirmation of his order by this Court at the time of final disposal of the suit.
6. Resultantly, the writ petition, being sans merit, stands dismissed without any order as to costs.