Madhya Pradesh High Court
Smt. Rekha Kushwah vs Rajendra on 30 July, 2025
1 M.P. No.5332/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
MISC. PETITION No. 5332 of 2024
SMT. REKHA KUSHWAH AND ANOTHER
Versus
RAJENDRA AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava - Advocate for the petitioners.
Shri Vivek Khedkar - Senior Advocate with Shri Rishabh Singh
Chauhan - Advocate for respondents No.1 to 4.
Shri Prabhat Pateriya - Govt. Advocate for respondent No.6/State.
Reserved on : 21.07.2025
Pronounced on : 30/07/2025
ORDER
This petition has been filed under Article 227 of the Constitution of India against the order dated 30.08.2024 passed by the Principal District Judge, Shivpuri, in M.C.A.No.17/2024, Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 2 M.P. No.5332/2024 whereby appeal filed by respondents No.1 to 4/defendants No.1, 3 to 5 (hereinafter shall be referred as "the defendants") has been allowed and the order dated 28.05.2024 passed by learned trial Court in RCSA No.74-A/2022 allowing the application under Order 39 Rule 1 & 2 CPC of the appellants (hereinafter shall be referred as the plaintiffs) has been set aside in part with regard to carry out construction.
2. Brief facts of the case are that plaintiffs and defendants No.1 & 3 to 5 are the sons and daughters of Late Ramdayal. After his death on 11.12.2020, an application under Sections 109 and 110 of M.P. Land Revenue Code was filed on 23.03.2021 on behalf of all legal representatives seeking mutation of the property which was registered as case No.5162/20-21/A-6. During pendency of the case, petitioners apprehending that sons of Late Ramdayal may try to create forged will of Late Ramdayal, filed an application in the form of objection contending that Late Ramdayal died intestate and therefore the names of all legal representatives be mutated in the revenue record. The said application was allowed by the Tahsildar vide order dated 26.08.2021 directing that names of all legal representatives be mutated in the revenue record in equal shares. The said order of Tahsildar was complied with and names of all the legal representatives were mutated in the revenue record in equal share. Thereafter on 15.09.2021 sons of Late Ramdayal again filed an application for mutation before the same Tahsildar on the basis Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 3 M.P. No.5332/2024 of will allegedly executed on 15.11.2020 by Late Ramdayal which was registered as Case No.2243/2021-22/A-6.
2.1 In the aforesaid proceeding, on 08.10.2021 affdavit of plaintiff Krishna was filed to the effect that she accepted the will in favour of the defendants, taking advantage of blank signed papers of the plaintiffs/petitioners given at the time of earlier mutation for legal formalities. On 01.11.2021 plaintiff Rekha appeared before the Tahsildar and filed an application raising her objection regarding genuineness and validity of the Will. The defendants again by misusing the blank signed papers filed an affidavit of plaintiff Rekha, which again was opposed by filing objection. On 08.11.2021 Tahsildar recorded objection of plaintiff Rekha and dismissed the second case for mutation.
2.2 On 26.12.2021 defendants again filed an application for mutation on the basis of the same Will without impleading plaintiffs as party. The said application was allowed vide order dated 31.12.2021 and the names of the defendants were directed to be mutated in the revenue record. Thereafter, defendants taking advantage of the order dated 31.12.2021 sold portion of survey No.60/1/1 to Smt. Priya, defendant No.2. When the plaintiffs came to know that name of Smt. Priya has been entered in the revenue record, the plaintiffs filed civil suit challenging the Will executed by Late Ramdayal, sale-deed in favour of Smt. Priya and declaration of title was sought.
Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 4 M.P. No.5332/20242.3 When plaintiffs came to know that defendants have obtained order dated 31.12.2021 in their favour, they applied for certified copy of the said order and in between Tahsildar by suo motu order dated 27.01.2023 reviewed his earlier order dated 31.12.2021. 2.4 During the pendency of the civil suit, defendants filed an application before Tahsildar Circle II, Shivpuri, seeking partition without disclosing the fact that order dated 31.12.2021 stood withdrawn and obtained order of partition dated 29.08.2023 in their favour. But later on this order dated 29.08.2023 has been set-aside by SDO (Revenue), Shivpuri in an appeal vide order dated 18.07.2024 (Annexure P-29).
2.5. Both the plaintiffs and respondents/defendants No.1 & 3 to 5 have filed separate applications under the provisions Order 39 Rule 1 & 2 r/w Section 151 of CPC seeking interim injunction in their favour.
2.6. The learned Trial Court vide its order dated 07.10.2023 has allowed the application filed on behalf of the plaintiffs which was only related to two survey numbers and since the entire property was not considered in the order, therefore, first appellate court vide its order dated 08.04.2024 has remanded the matter back to the Trial Court to decide the applications seeking interim injunction. 2.7. Vide order dated 28.05.2024, the learned Trial Court allowed the applications filed on behalf of both parties and directed the plaintiffs and defendants not to alienate the suit property, either by Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 5 M.P. No.5332/2024 themselves or through any other person and no alteration be made in the nature of the disputed land by carrying out construction etc. on it.
2.8 The First Appellate Court, vide impugned order dated 30.08.2024 (Annexure P-1), set aside the order of the Trial Court so far as it relates to injunct the defendants from undertaking any construction over the suit land and thereby allowed the appeal partly.
3. It is submitted by learned counsel for the petitioners that the initial applications for mutation on the suit land was filed on 23.03.2021. Defendant Susheela and petitioner/plaintiff Rekha have filed objection in that mutation proceeding that respondents are in process of creating forged and fabricated will of late Ramdayal, therefore, same should not be relied upon. Vide order dated 26.08.2021, the Tahsildar mutated the names of all the legal representatives of Late Ramdayal including petitioners/plaintiffs and defendants/respondents No.1 & 3 to 5 and this mutation has been done in revenue records. The second application has been filed just after 22 days on the strength of forged and fabricated will dated 15.11.2020 by the defendants on 18.09.2021 taking advantage of signatures of petitioners in blank papers, but that application has been dismissed by the Tahsildar vide order dated 08.11.2021 but even thereafter third application for mutation has been filed by the defendants/respondents No.1, 4 & 5 on 26.12.2021 without Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 6 M.P. No.5332/2024 showing any ground as to how this third application for mutation was maintainable. In third application, petitioners had not been made a party and in collusion with revenue authorities, defendants within the period of 4-5 days got the order dated 31.12.2021 mutating the names of defendants on the basis of will while the Tahsildar or Revenue Authorities do not have any power to pass order of mutation on the basis of the will.
4. It is also submitted by learned counsel for the petitioners that petitioners were unaware of order dated 31.12.2021 since they were not party to it. The defendants got an entry of mutation in survey No.61 in two parts and executed a sale deed dated 02.03.2022 in favour of defendant No.2, whereas the other defendants have no authority to execute a sale-deed in favour of defendant No.2 without there being any partition of the suit property between L.Rs of Ramdayal i.e. petitioners/plaintiffs and defendants No.1 & 3 to 5/respondents. Thereafter respondent No.5 (defendant No.2) got her name mutated in revenue records on the basis of aforesaid sale-deed without issuing any notice and without impleading petitioners/plaintiffs in the mutation proceedings.
5. It is further submitted by learned counsel for petitioners that thereafter a civil suit has been filed by the petitioners initially in respect of two survey numbers but thereafter when they came to know that defendants have mutated their names in the entire suit property, therefore, other suit property has been incorporated in the Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 7 M.P. No.5332/2024 suit. Tahsildar vide its order dated 27.01.2023 withdrew its earlier order dated 31.12.2021, thereby the order passed in favour of respondents of mutation stood cancelled, but thereafter defendants filed a case No.126/A-27/2023-24 without impleading the plaintiffs as a party and obtained an order of partition dated 29.08.2023 in their favour on land bearing survey No.61/1/1/1 and survey No.61/1/1/2. Later on, this order has been set-aside by SDO in appeal vide order dated 18.07.2024. Therefore, in the backdrop of this factual matrix, the order of learned Trial Court maintaining status-quo over the suit land was just and appropriate. The defendant No.1, 3 to 5 and plaintiffs are the co-sharers on the suit property, and therefore, defendants No.1, 3 to 5/respondents No.1 to 4 have no authority to carry out any construction work over the suit property nor they have any authority to alienate any part of it, but learned First Appellate Court on the basis of the forged and fabricated will and affidavits of plaintiffs which were filed in the mutation proceedings before Tahsildar has set-aside the order passed by learned Trial Court, which is perverse and unlawful, therefore prays to set-aside the impugned order of First Appellate Court and allow the application filed by the petitioners/plaintiffs for temporary injunction. He has relied on the judgments passed in the cases of Maharwal Khewaji Trust vs. Baldev Das (2004) 8 SCC 488 Para 10, Kanchan Singh Vs. Daulat Singh 2014 (3) MPLJ 54 Para 3 & 4, Suman Chouksey Vs. Dinesh Kumar, 2019 (4) Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 8 M.P. No.5332/2024 MPLJ Para 11 and Anand Chaudhary Vs. State of M.P, 2025 (1) MPLJ 646.
6. Per contra, learned counsel appearing on behalf of the respondents No.1 to 4 has opposed the appeal on the ground that Ramdayal died on 11.12.2020 but before that on 15.11.2020, he had executed a will in favour of defendants and by virtue of aforesaid will, the defendants/respondents No.1 to 4 became owner of the suit property. This will is not forged or frivolous. On the basis of this will, mutation order has been passed by learned Tahsildar keeping in view the affidavits of plaintiffs, but Tahsildar without getting permission from higher authorities has cancelled the order dated 31.12.2021 which is without jurisdiction. The disputed property is in actual possession of defendants/respondents No.1 to 4. Plaintiffs are not in actual possession of the suit property, therefore, there is no prima facie case in favour of the plaintiffs. The balance of convenience and irreparable loss are also not in favour of the plaintiffs. Since the defendants had given assurance that they are not alienating the property and that the sale deed executed in favour of respondent No.5/defendant No.2 - Smt.Priya Sharma has been executed even prior to filing of civil suit, therefore, no case is made out in favour of the plaintiffs. It is submitted that if the property is joint, then injunction against co-owner cannot be issued. He relied upon the order dated 14.10.2022 passed by the Coordinate Bench of this Court in case of Narbada Prasad Soni Vs. Bhola Nath Soni Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 9 M.P. No.5332/2024 & Ors. (M.A. No.1202/2018), judgment dated 30.12.2022 passed by the High Court of Jammu & Kashmir and Ladakh at Srinagar in case of Mst. Zaiba Vs. Ghulam Ahmad Zargar & Others in CM No.7332/2022 and the judgment passed by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329.
7. Heard learned counsel for the parties and perused the record.
8. The chronological events of the case clearly shows that the first order of Tahsildar dated 26.08.2021 in relation to mutation in favour of all the legal representatives over disputed property has been passed by the Tahsildar after hearing both the parties and considering the objection in this regard, but thereafter when the second application was filed on behalf of respondents No.1 to 4 for mutation on the disputed land, it has been dismissed by the Tahsildar vide order dated 08.11.2021 because the second application was filed on the basis of will of Ramdayal dated 15.11.2020 and question of authority of Tahsildar and Revenue Authorities to pass an order of mutation on the basis of will was also involved therein.
9. Thereafter, third application for mutation has been filed on behalf of the defendants before Tahsildar on 26.12.2021 and within the period of five days, on 31.12.2021, order of mutation has been passed by the Tahsildar on the basis of said will dated 15.11.2020, but this application was not at all maintainable as this was filed for Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 10 M.P. No.5332/2024 the third time and since by order dated 08.11.2021, the Tahsildar considering this will and other documents has rejected this application for mutation, therefore, there is no occasion for entertaining this third application without raising any new ground. Moreover, in this third application for mutation, plaintiffs/petitioners have not been impleaded as party, whereas they were the necessary parties specially keeping in view of the order dated 26.08.2021. Because of that, this order dated 31.12.2021 has been recalled by Tahsildar vide order dated 27.01.2023. The defendants No.1, 3, 4 & 5 have sold the land bearing survey No.60/1/1 in favour of defendant No.2 vide sale deed dated 02.03.2022, but here the authority of defendants No.1,3,4 & 5 to execute the sale deed in favour of defendant No.2 is under challenge because mutation on the basis of which sale deed has been executed was not valid and effective. It is pertinent to mention here that the plaintiffs were co-owners of the suit property with defendants No.1,3,4 & 5, therefore, without the consent of all co-owners no such sale-deed could have been executed by some of the co-owners.
10. The defendants No.1,3,4&5 have not stopped here. They moved an application for partition of the suit property before Tahsildar without impleading plaintiffs as a party and vide order dated 29.08.2023 obtained order of partition from the Tahsildar, but this order was passed without impleading necessary party, therefore, Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 11 M.P. No.5332/2024 SDO in appeal vide order dated 18.07.2024 has recalled that order.
11. The chronological event of the case shows that defendants No.1,3,4 & 5 were adamant to transfer the land without considering the rights and title of the plaintiffs over the suit land and before the adjudication of the will dated 15.11.2020, which also shows that defendants are not appearing before the Court with clean hands. In this regard, after considering over all situation and to avoid the multiplicity of the suits, the learned Trial Court has rightly passed the order for maintaining status-quo on the suit property.
12. During the course of arguments, it is also revealed that on a part of suit property, the defendants are undertaking some construction work to establish petrol pump and there is apprehension to the plaintiffs that they may transfer other part of suit land, therefore, it would not be in the fitness of things that before adjudication of rights and title of both the parties over the suit property, such construction work or alienation of the suit property will occur, as it will create more complications and will cause multiplicity of litigation.
13. In case of Narbada Prasad Soni (supra) the Coordinate Bench of this Court has held that injunction cannot be granted in favour of one co-sharer against another co-sharer in the absence of prima facie evidence of exclusive possession or threat to possession.
14. In case of Mst. Zaiba (supra) the High Court of Jammu and Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 12 M.P. No.5332/2024 Kashmir has held that a co-sharer, who is in exclusive possession of a joint holding, cannot be restrained from raising construction on that portion of the joint holding of which he is in exclusive possession.
15. In case of Shalini Shyam Shetty (supra) Hon'ble Apex Court has held that High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
16. The Hon'ble Apex Court in the case of Maharwal Khewaji Trust (supra) has held in para 10 as under :-
"10.Be that as it may, Mr Sachar is right in contending that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of the property by putting up construction as also by permitting the alienation of the property, whatever Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 13 M.P. No.5332/2024 may be the conditions on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored."
17. The judgments placed reliance by learned counsel for the respondents are not helpful to the respondents in the present case as aforesaid citations are distinguishable on facts regard being had to the peculiar facts and circumstances of the case. Here in the present case, it is clear that order dated 31.12.2021 was passed by the Tahsildar allowing mutation in favour of respondents No.1 to 4 on the basis of will dated 15.11.2020, but previous order of Tahsildar dated 8.11.2021 dismissing the application for mutation considering the said will dated 15.11.2020 was not considered by the Tahsildar. Thereafter again without disclosing the fact that order of mutation dated 31.12.2021 has been recalled vide order dated 27.01.2023 respondents obtained order of partition in their favour vide order dated 29.09.2023 which has also been set aside by the SDO in appeal vide order dated 18.07.2024.
18. Consequently, considering the facts and circumstances of the case, learned trial Court has rightly passed the order of status-quo Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM 14 M.P. No.5332/2024 which is just and proper. Learned appellate Court without considering the factual matrix of the case, only on the basis of will which is to be adjudicated and affidavits of the plaintiffs said to have been false and frivolous, set aside the order of status-quo as regards construction over the suit property. If the order of learned appellate Court is allowed to remain in force, it will amount to gross and manifest failure of justice and the plaintiffs shall suffer irreparable injury and it will create multiplicity of proceedings if the defendants are not stopped to carry out construction work before adjudication of rights and title of the parties.
19. Thus, the order of learned Trial Court dated 28.05.2024, is hereby restored, while setting aside the order of First Appellate Court dated 30.08.2024.
20. Petition is disposed of accordingly.
(RAJENDRA KUMAR VANI) JUDGE Aman/ ms/-
Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 7/31/2025 10:10:14 AM