Madhya Pradesh High Court
Phoolmati Singh Patel vs Nathulal Singh on 4 October, 2012
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
(1)
M.A. No.1549/2011
HIGH COURT OF M. P. JUDICATURE AT JABALPUR
Single Bench :
Hon'ble Shri Justice A.K. Shrivastava
Misc. Appeal No.1549 / 2011
Appellant : Phoolmati Singh Patel, D/o Late
Plaintiff Ramkishore Singh, W/o
Rampratap Singh, R/o Village Badarkha
Post Bathiya, Tahsil Rampur Baghelan,
District Satna (M.P.)
Versus
Respondents : 1. Nathulal Singh
Defendants S/o Late Shri Rammilan Singh
Occupation Agriculture, R/o
Village Hinouti Tahsil Rampur Baghelan,
District Satna (M.P.)
2. Bharat Prasad Singh
S/o Late Shri Rammilan Singh
Occupation Agriculture, R/o
Village Hinouti Tahsil Rampur Baghelan,
District Satna (M.P.)
3. Sant Prasad Singh
S/o Late Shri Rammilan Singh
Occupation Agriculture, R/o
Village Hinouti Tahsil Rampur Baghelan,
District Satna (M.P.)
4. Laxman Prasad Singh
S/o Late Shri Rammilan Singh
Occupation Agriculture, R/o
Village Hinouti Tahsil Rampur Baghelan,
District Satna (M.P.)
5. Vidyadevi @ Kalli
D/o Late Shri Rammilan Singh
W/o Late Dinesh Singh,
Village Bamhouri
District Satna (M.P.)
6. Smt. Butna D/o Late Rammilan Singh,
R/o Village Pithaipur, Tahsil Rampur
Baghelan, District Satna, (M.P.)
7. Khurridevi,
D/o Late Ramkishore Singh,
W/o Sunderlal Singh,
R/o Village Hinouti Tahsil Rampur
Baghelan, District Satna (M.P.)
8. Ramkali first
W/o Late Ramkishore Singh,
(2)
M.A. No.1549/2011
2nd wife of Late Rammilan Singh,
R/o Village Hinouti Tahsil Rampur
Baghelan,
District Satna (M.P.)
9. Gyanendra Singh,
S/o Nathulal Singh,
Occupation Agriculture,
R/o Village Hinouti Tahsil Rampur
Baghelan,
District Satna (M.P.)
10. Rajan Singh @ Rajneesh Singh, S/o. Santlal
Singh, Occupation Agriculture, R/o. Village
Hinouta, Tehsil Rampur Baghelan, District
Satna (M.P.)
11. M/s. Karan Cement Factory (Rasi Factory)
Limited through Manager Village Mankahri
Tehsil Rampur Baghelan District Satna (M.P.)
12. M/s. Prism Cement Limited through Manager,
Prism Cement Factory Mankahri Tehsil Rampur
Baghelan District Satna (M.P.)
13. State of Madhya Pradesh through Collector
District Satna
________________________________________________________
Shri A.D. Mishra, Advocate for appellant.
None for respondents no.1 to 11.
Shri R.P. Agrawal, Senior Advocate with Shri Mishant Punase, Ad-
vocate for respondent No.12.
Shri Santosh Yadav, Panel Lawyer for respondent no.13/State.
________________________________________________________
JUDGMENT
(Delivered on this 4th day of October, 2012) This appeal has been preferred under Order XLIII Rule 1(r) CPC by the plaintiff against the order dated 27.01.2011 passed by learned Second Additional District Judge, Satna in C.S. No. (3) M.A. No.1549/2011 58-A/2010 dismissing the application for issuance of temporary in- junction.
2. The facts necessary for disposal of this appeal lie in a narrow compass. Suffice it to say that a civil suit has been filed by the plaintiff for declaration of her share, partition and further that the sale-deed executed by defendants No.1 to 4 in favour of defendants No.11 and 12 dated 18.07.1994 be declared null and void and further that the mutation order made in favour of defendants No.11 and 12 dated 07.07.1995 is illegal.
3. Copy of the plaint has not been filed however on bare perusal of the application of temporary injunction which was filed by the plaintiff as well as from the impugned order it is gathered that the plaintiff is claiming 1/6th share of the suit property, the description whereof has been mentioned in the plaint. According to her, she be- ing the daughter of Ramkishore who was brother of Ram Milan and after their death the property in question devolved in her jointly alongwith other co-heirs. It appears that it has been pleaded in the plaint that no partition has been effected in the family and since she is having 1/6th share in the suit property, therefore, her suit be de- creed.
4. An application for issuance of temporary injunction has also been filed by the plaintiff praying that till suit is decided, the suit properties which are mutated in the name of defendants no.1 to 4, 9 (4) M.A. No.1549/2011 & 11 should not be alienated nor mortgaged. It has also been prayed in the application that defendants no.11 and 12 be restrained from removing the earth and other material from the suit property.
5. The defendants no.1 to 4, 9 and 10 refuted the aver- ments made in the application and pleaded that in partition the suit property fell in the share of Ram Milan and they being the heirs of Ram Milan, a part of suit property was sold by them to defendants no.11 and 12 namely M/S. Karan Cement Factory and M/s. Prism Cement Ltd. It has also been averred in the reply that some land has been sold by defendants no.1 to 4, 9 and 10 in favour of defend- ants no.11 and 12. Further it has been averred that possession of entire suit property is of defendants no.11 and 12 through sale-deeds as well as mining lease granted in their favour by the State of M.P./defendant No.13. At-present the possession is of defendants no.11 and 12 at the spot and their names have also been mutated in the revenue record. Similar type of reply is of defendants no.11 and
12.
6. Learned trial Court dismissed the application of tempor- ary injunction by the impugned order holding that the plaintiff is not having any prima facie case nor she is having balance of conveni- ence in her favour and she will not face any irreparable loss.
7. In this manner, this appeal has been filed by the plaintiff before this Court.
(5)M.A. No.1549/2011
8. Shri Mishra, learned counsel for appellant by inviting my attention to the judgment and decree dated 31.08.2006 passed by learned 3rd Additional District Judge Satna in C.S. No.37-A/2005 (Khurridevi vs. Natthulal and others) has submitted that in this suit it was declared that suit property which was subject matter of that suit and is also subject matter of present suit, 1/6 th share was of plaintiff Khurridevi. Since present appellant/plaintiff Phoolmati was arrayed as defendant no.5 in that suit and she being the real sister of Khur- ridevi and she is also daughter of Ramkishore, therefore, she is also having 1/6th share in the suit property. Hence, it has been submitted that plaintiff is having prima facie case in her favour. Further it has been contended that learned Trial Court erred in holding that she is not possessing the suit property. According to him, she is having 1/6th share in the suit property and therefore her possession is joint alongwith defendants no.1 to 12. Hence, it has been prayed that by allowing this appeal, the impugned order be set aside.
9. On the other hand Shri Agrawal, learned Senior Counsel for respondent no.12 argued in support of the impugned order and submitted that against the judgment passed in Civil Suit No.37- A/2005 dated 31.08.2006, First Appeal No.714/2006 (M/s. Prism Ce- ment Ltd. vs. Khurridevi and others) was filed and was decreed in compromise by this Court on 09.02.2007. Learned Senior Counsel submits that in the compromise application which is also part of de- cree it has been stated that respondents no.2 to 8 of that appeal with (6) M.A. No.1549/2011 the consent of respondent no.1 have sold the disputed property to M/s. Prism Cement through registered sale-deed dated 13.12.2006 and therefore even if there was any claim of plaintiff it has come to an end. It has also been put-forth by him that learned Trial Court on the basis of pleadings, affidavits and revenue record gave a finding that suit property was of Ram Milan whose heirs are defendants no. 1 to 6 and because there is overwhelming documents (revenue re- cord) that the suit property fell in the share of these defendants, therefore, rightly it has been held that plaintiff is not having any prima facie in her favour. It has also been put-forth by him that at-present the respondents no.11 and 12 are possessing the suit property and this finding has been rightly arrived at by learned Trial Court. Further it has been contended by him that no consent of the owner is re- quired for obtaining the land for the purpose of mining and in this context learned Senior Counsel has invited my attention to the Divi- sion Bench decision of this Court Shyam Bihari Singh and others vs. State of M.P. & Ors. in W.P. No.7745/2006 decided on 2.05.2008. Hence it has been prayed that this appeal be dismissed.
10. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed.
11. So far as the contention of learned counsel for appellant that she being the real sister of Khurridevi and also daughter of Ramkishore Singh and is having 1/6 th share in the suit property be- cause vide judgment dated 31.08.2006 passed in Civil Suit No. 37- (7) M.A. No.1549/2011 A/2005 it has been held that Khurridevi is having 1/6 th share in the suit property is concerned, suffice it to say that in that suit present plaintiff Smt. Phoolmati Singh was arrayed as defendant no.5. Against the said judgment defendant no.12 (respondent no.12 in this appeal) filed first appeal (F.A. No.704/2006) and in that appeal present plaintiff was arrayed as respondent no.6 and that appeal has been decided in terms of the compromise application on 09.02.2007 by this Court. I do not find any merit in the contention of learned counsel for appellant that compromise decree passed by this Court is not binding upon the appellant because compromise application was not singed by her. In para 3 of the compromise application it has been specifically mentioned that respondent no.2 to 8 with the consent of respondent no.1 Khurridevi have sold the disputed prop- erty to the appellant M/s. Prism Cement Ltd. who was arrayed as de- fendant no.7 in C.S. No.37-A/2005 through registered sale-deed dated 13.12.2006. No application has been filed to set aside the compromise decree and therefore at-present since the present plaintiff was the party in the earlier suit as defendant no.5 and was also arrayed as respondent no.6 in the first appeal No.704/2006 and there is compromise decree against her, I am of the view that said argument of appellant cannot be accepted.
12. On bare perusal of the impugned order, it is gathered that for years together the names of defendants no.1 to 4 and thereafter defendants no.9 and 10 were recorded in the revenue record and the (8) M.A. No.1549/2011 property in question earlier was mentioned in the name of Ram Milan whose LRs are these defendants, but, present appellant/plaintiff nev- er challenged these entries. Not even a single document has been filed by the plaintiff in order to show prima facie possession on the suit property, on the contrary the possession on the basis of revenue record has been found of defendants no.11 and 12 (respondents no.11 and 12). Thus, I am of the view that learned Trial Court did not commit any error in rejecting the plaintiff's application for issuance of temporary injunction.
13. There is no merit in this appeal, the same is hereby dis- missed with no orders as to cost.
(A.K. Shrivastava) Judge 04/10/2012 SS