Chattisgarh High Court
Vinay Kumar Soni vs Naveen Kumar Bansal on 4 August, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (227) No.217 of 2022
Order Reserved on : 29.6.2022
Order Passed on : 4.8.2022
Vinay Kumar Soni, S/o Ramcharan Soni, aged about 45 years, R/o
Sattigudi Chowk, Raigarh, Tahsil and District Raigarh, Chhattisgarh
---- Petitioner
versus
1. Naveen Kumar Bansal, S/o Suresh Kumar Agrawal, aged about 39
years,
2. Amit Kumar Bansal, S/o Suresh Kumar Agrawal, aged about 37 years,
Both Above R/o Friends Colony, Raigarh, District Raigarh,
Chhattisgarh
3. Bharat Petroleum Corporation Limited, through its Regional Manager,
Bharat Petroleum Corporation Limited, 1 st Floor, Shahid Veer Narayan
Complex, In front of Collectorate, Near Ghadi Chowk, Raipur, District
Raipur, Chhattisgarh
4. State of Chhattisgarh through Collector Raigarh, District Raigarh,
Chhattisgarh
--- Respondents
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For Petitioner : Shri Manoj Paranjpe and Shri Anshul Tiwari, Advocates For Respondents No.1&2 : Shri Hari Agrawal, Advocate For Respondent No.3 : Shri Sourabh Sharma, Advocate For Respondent No.4 : Ms. Madhunisha Singh, Deputy Advocate General
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Hon'ble Shri Justice Arvind Singh Chandel C.A.V. ORDER
1. The Petitioner who is defendant No.1 in the Trial Court by way of the instant petition has challenged the legality, validity and propriety of the order dated 27.12.2021 passed by 1 st Additional District Judge, Raigarh in Miscellaneous Civil Appeal No.18 of 2021 whereby the appeal preferred by the Petitioner against the order of 2 grant of injunction dated 28.10.2021 passed by 2 nd Civil Judge Class II, Raigarh in Civil Suit No.82A of 2020 has been dismissed and the order of injunction has been upheld. The Petitioner has also challenged the order dated 10.2.2022 passed by the Civil Judge Class II, Raigarh and the order dated 29.3.2022 passed by 1st Additional District Judge, Raigarh whereby the earlier injunction order has been extended for a further period of three months.
2. Respondents No.1 and 2/plaintiffs filed a suit for declaration and injunction in respect of land bearing Khasra No.56/3 area 0.158 hectares situated at Village Baikunthpur, District Raigarh. An application for injunction was also filed inter alia on the allegation that defendants No.1 and 2 are trying to raise construction over the land in question and they are trying to dispossess the plaintiffs. The injunction was sought to the effect that defendants No.1 and 2 be restrained from raising any construction and from interfering with the possession of the plaintiffs. Defendant No.1 filed a detailed reply of the injunction application filed under Order 39 Rules 1 and 2 CPC and denied all the allegations made in the application for grant of injunction. During pendency of the said application, an application under Order 26 Rule 9 CPC for appointment of a commission for demarcation of the land and for spot inspection was also filed by the plaintiffs. The Trial Court vide order dated 28.10.2021 allowed the application filed by the plaintiffs under Order 39 Rules 1 and 2 CPC and the defendants have been restrained from raising any construction over the land bearing Khasra No.56/3 area 0.158 hectares and it was further directed that 3 no activity be carried out in the land for a period of three months. Against the said order, a miscellaneous civil appeal was filed by the Petitioner. Vide order dated 27.12.2021 the Appellate Court dismissed the appeal. While deciding the appeal it was observed by the Appellate Court that if the Petitioner gives any undertaking before the Trial Court, the Trial Court shall consider the same and pass an appropriate order. Vide order dated 10.2.2022 the Trial Court extended the period of injunction for further three months against which appeal was preferred by the Petitioner which was also dismissed by the Appellate Court vide order dated 29.3.2022. Hence, this petition.
3. Learned Counsel appearing for the Petitioner submitted that submission of the application under Order 26 Rule 9 CPC for appointing a commission for demarcation of the suit property itself shows that the Respondents/plaintiffs are not aware of the fact that the construction being carried out by the Petitioner/defendant No.1 over the land is a part of Khasra No.56/3 area 0.158 hectares or not. Despite that, the Trial Court granted injunction order in favour of the plaintiffs and the injunction order is also affirmed by the Appellate Court. It was found by the Trial Court itself that the balance of convenience is not in favour of the plaintiffs, but despite that, the injunction order was passed which is not in accordance with law. On this point, reliance was placed on (1995) 5 SCC 545 (Gujarat Bottling Co. Ltd. v. Coca Cola Co.), (2004) 8 SCC 488 (Maharwal Khewaji Trust v. Baldev Dass), 2014 (3) MPLJ 120 (Singh Cold Storage Pvt. Ltd. v. Parle Biscuits Pvt. Ltd.) and 2020 4 (2) MPLJ 54 (Kamal Singh v. Narayan J. Acharya).
4. Learned Counsel appearing for the Petitioner further argued that the construction in question is being carried out by the Petitioner/defendant No.1 over his land which is being done as a consequence of the contract entered into between him and Respondent No.3/defendant No.2/Bharat Petroleum Corporation Limited. Earlier and now also the Petitioner is ready to give undertaking that if the construction is found to be over the land of the plaintiffs, he shall give vacant possession of the said land to the plaintiffs on his own cost. In this regard, reliance was placed on 1983 Weekly Notes 131 (Murti Padmanabha v. Raghuvirdas), 1983 Weekly Notes 170 (Mohan v. Narain) and (2017) 11 SCC 103 (K.M. Pratap v. K.M. Gourish).
5. Opposing the arguments advanced by Learned Counsel for the Petitioner, Learned Counsel appearing for Respondents No.1 and 2 submitted that while exercising the power under Article 227 of the Constitution of India the High Court does not act as a Court of first appellate. When the final finding is justified no relief can be granted under Article 227 of the Constitution of India. The power under Article 227 of the Constitution of India is one of the judicial superintendence and cannot be exercised to upset a conclusion of facts however erroneous those may be. Reliance was placed on (1977) 4 SCC 587 (M/s India Pipe Fitting Co. v. Fakruddin M.A. Baker) and (2022) 4 SCC 181 (Garment Craft v. Prakash Chand Goel). It was further argued that on the basis of material available on record, both the Courts below rightly granted and affirmed the 5 order of injunction in favour of the Respondents/plaintiffs.
6. Learned Counsel appearing for Respondent No.3 adopts the arguments raised by Learned Counsel for the Petitioner.
7. Learned Counsel appearing for Respondent No.4 supports the impugned orders.
8. I have heard Learned Counsel appearing for the parties and perused the impugned orders passed by the Courts below and also gone through the other material available.
9. It is not in dispute that Respondents No.1 and 2/ plaintiffs are the owners of land bearing Khasra No.56/3 area 0.158 hectares. It is also not in dispute that according to the LOI (Annexure P14) accorded between the Petitioner and Respondent No.3, the construction is to be done over the land bearing survey No.56/4/1, 56/10 and 56/11 at Village Baikunthpur, Tahsil and District Raigarh. According to the Petitioner, he is getting the said construction done over his own land according to the LOI (Annexure P14). It is the case of the plaintiffs that this construction is being carried out over their land bearing Khasra No.56/3 area 0.158 hectares situated at Village Baikunthpur, Tahsil and District Raigarh. Only on this ground, the plaintiffs preferred an application for injunction and got the order of injunction in their favour. The material available themselves show that for demarcation of the land the plaintiffs themselves made an application before the Trial Court for appointment of a commission under Order 26 Rule 9 CPC. Without 6 deciding the said application, the Trial Court granted injunction order in favour of the plaintiffs and the same has also been affirmed by the Appellate Court. In para 17 of its order dated 28.10.2021, the Trial Court itself observed that the balance of convenience is not in favour of the plaintiffs, but despite that, the Trial Court granted the injunction order in favour of the plaintiffs and the same has also been affirmed by the Appellate Court. As both the Courts below have granted and affirmed the injunction order in favour of the plaintiffs and later on further extended the said order of injunction for three months, at this stage, I am of the view that this order should not be interfered with by this Court. But, having heard Learned Counsel appearing for the parties, I am of the view that interests of the parties can be protected by issuing the following directions which be treated as continuation of the orders of the Courts below which are under challenge before this Court:
(1) The Trial Court is directed to immediately appoint a Commissioner for demarcation and for spot inspection of the suit land directing the Commissioner that he shall submit his report within fifteen days from his appointment before the Trial Court. (2) The Trial Court is further directed that after submission of the report by the Commissioner, it shall expedite the trial on day to day basis and decide the suit as early as possible preferably within four months from the receipt of the report of the Commissioner. (3) Since the Petitioner has undertaken before this Court that in case it is ultimately found that the construction in question is being carried out over the land of the Respondents/plaintiffs bearing Khasra No.56/3 area 0.158 hectares he shall hand over vacant possession 7 of the said land to the plaintiffs on his own cost, he is permitted to carry out the construction. (4) In case ultimately it is found that the construction is being carried out over the land of the plaintiffs, Respondent No.3/defendant No.2/Bharat Petroleum Corporation Limited shall not raise any objection against giving vacant possession of the said land to the plaintiffs and if any damages is caused to the Respondent/Bharat Petroleum Corporation Limited against demolition of the construction in question it will claim the same from the Petitioner/defendant No.1.
Ordered accordingly.
10. In the result, the writ petition is disposed of in the aforesaid terms.
Sd/-
(Arvind Singh Chandel) JUDGE Gopal