Madhya Pradesh High Court
Kamal Singh vs Narayan J Acharya on 16 August, 2019
Equivalent citations: AIR 2019 MADHYA PRADESH 210, AIRONLINE 2019 MP 929
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
THE HIGH COURT OF MADHYA PRADESH
1
MP No. 3894/2019
(Kamal Singh Vs Narayan J Acharya & others)
Gwalior, Dated :16/08/2019
Shri Abhishek Singh Bhadoriya, learned counsel for the
petitioner.
Shri R.K. Soni, learned Government Advocate for the
respondents-State.
Heard on the question of admission and interim relief.
1. In this petition under Article 227 of the Constitution of India, petitioner has challenged the order dated 12/04/2019 (Annexure P-2) passed in Civil Suit No. 3A/2019 by First Civil Judge Class-2, Guna (M.P.) whereby application filed by the petitioner/plaintiff under Order 39 Rule 1 and 2 of the Code of Civil Procedure was rejected by the Trial Court. The order dated 15/05/2019 passed in Miscellaneous Civil Appeal No. 22/2019 is also called in question whereby the Lower Appellate Court in exercising the power under Order 43 Rule 1 of the CPC has affirmed the order passed by the Trial Court.
2. Necessary facts for adjudication of this case are that petitioner/plaintiff instituted a civil suit for declaration of title and permanent injunction with respect to disputed land alongwith application under Order 39 Rule 1 and 2 of the CPC seeking THE HIGH COURT OF MADHYA PRADESH 2 MP No. 3894/2019 (Kamal Singh Vs Narayan J Acharya & others) temporary injunction in respect of the suit land i.e. situated at Survey No. 44 from 14 Bighas 13 Biswa and from Survey No. 45 1 Biswa Guna City Halka Chawani Tahsil District Guna (M.P.) (hereinafter referred to as the "disputed land"). The aforesaid disputed land was originally in the name of late Shri Raja Ganga Singh s/o late Shri Raja Mahendra Singh which was later on given to father of the petitioner/plaintiff by executing sale deed dated 16/11/1958 and the possession was also handed over to the father of the petitioner/plaintiff and he did not cultivate the aforesaid land. On the aforesaid basis, plaintiff had become owner in possession of the disputed land. Respondents are trying to dispossess from the disputed land by threatening him. Under such circumstances, petitioner/plaintiff had no option but to file civil suit alongwith application under Order 39 Rule 1 and 2 of the CPC for temporary injunction. The Trial Court in its order dated 12/04/2019 had come to the conclusion that prima-facie plaintiff has not been able to prove that he is in possession of the disputed land. The possession can be proved after the evidence is recorded. So far as the question of alienation of the disputed land is concerned, plaintiff can very well apply under Section 52 THE HIGH COURT OF MADHYA PRADESH 3 MP No. 3894/2019 (Kamal Singh Vs Narayan J Acharya & others) of the Transfer Property Act. At this stage, since the petitioner/plaintiff does not appear to be in possession of the disputed land, there is no question of irreparable loss being caused to him.
3. Being aggrieved by the order dated 12/04/2019, plaintiff preferred an appeal under Order 43 Rule 1 of the CPC. The Lower Appellate Court vide order dated 15/05/2019 rejected the appeal on the ground that plaintiff has not been able to show that he is in possession of the disputed land. Accordingly, the Lower Appellate Court affirmed the order passed by the Trial Court. Learned counsel for the petitioner/plaintiff criticized the orders passed by the Lower Appellate Court, as well as, the trial Court on the ground that both the courts below have failed to consider the fact that petitioner/plaintiff is in possession of the disputed land for more than 55-60 years. The Trial Court did not consider the sale deed dated 16/11/1958 in its true perspective and there is contradiction in the Survey numbers and sale deed executed in the name of Mooli Devi is forged and concocted. Therefore, prima-facie case and balance of convenience lies in favor of the plaintiff. As such, injunction order ought to have been passed in THE HIGH COURT OF MADHYA PRADESH 4 MP No. 3894/2019 (Kamal Singh Vs Narayan J Acharya & others) favour of petitioner/plaintiff. Learned counsel for the petitioner/plaintiff contended that in the aforesaid circumstances temporary injunction may be granted.
4. On the other hand, Shri R.K. Soni, learned Government Advocate appeared on behalf of respondent No.6 and supported the orders passed by the Courts below by taking this Court to various paragraphs of lower appellate Court's order. The Appellate Court as well as the Trial Court has held that question of possession can be decided only after recording of evidence, therefore, plaintiff is not entitled for any relief, as such petition deserves to be dismissed, in view of the concurrent findings of both the courts below.
5. Heard learned counsel for the parties.
6. It is seen that plaintiff has not been able to show any material or document to show that he is in possession of the disputed land. The question of possession can be decided only after recording of the evidence as has been held by both the Courts below. Prima-facie balance of convenience does not lie in favor of the petitioner/ plaintiff. It is well settled that conduct of the parties is also a relevant consideration for grant of THE HIGH COURT OF MADHYA PRADESH 5 MP No. 3894/2019 (Kamal Singh Vs Narayan J Acharya & others) injunction, as this Court in Rajesh Mishra Vs. Rajesh Vilas Singh Kushwaha (2015 (2) MPLJ 698) has observed thus:-
"13. The Apex Court in 2010 (2) JLJ 210, Narendra Kante vs. Anuradha Kante and others opined that, while considering an application for grant of injunction, the Court has not only to take into consideration the basic elements regarding existence of a prima facie case, balance of convenience and irreparable injury, it has also to take into consideration the conduct of the parties since grant of injunction is an equitable relief.
7. Thus, while exercising discretion for grant of interim injunction the following three principles are applied:-
(i) Whether plaintiff has a prima facie case;
(ii) Whether balance of convenience is in favour of the plaintiff;
(iii) Whether the plaintiff would suffer irreparable injury if temporary injunction is declined.
8. On going through the record of the case and looking to the fact that plaintiff is unable to show that he is owner of the disputed land and is in possession thereof, the aforesaid three ingredients are not satisfied. The trial Court, as well as, the first appellate Court have exercised the jurisdiction to deal with the prayer of injunction on the aforesaid sound principles of law.
9. As such, this Court, in exercise of powers under Article THE HIGH COURT OF MADHYA PRADESH 6 MP No. 3894/2019 (Kamal Singh Vs Narayan J Acharya & others) 227 of the Constitution, cannot interfere with the concurrent findings of facts leading to non grant of injunction, unless the findings arrived at are perverse in nature (See Skyline Education Institute (India) Pvt. Ltd. Vs. S.L.Vaswani, (2010)2 SCC 142). The findings recorded by the trial Court, as well as, the first appellate Court, by no stretch of imagination, can be said to be perverse. Hence, no case for interference, in exercise of powers under Article 227 of the Constitution of India, is made out.
10. The petition is, accordingly, dismissed, at the admission stage itself.
11. It is made clear that the findings in this order shall not affect the merits of the case before the trial Court in any manner.
(S.A.Dharmadhikari) JUDGE Prachi PRACHI MISHRA 2019.08.20 18:06:57 +05'30'