Madhya Pradesh High Court
Keshari Prasad vs Sub Divisional Officer on 14 December, 2012
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HIGH COURT OF MADHYA PRADESH ; JABALPUR
W.P.No.20000/2012
Keshari Prasad and ano.
Vs.
Sub-Divisional Officer and another.
For the Petitioner s : Shri Ravish Agarwal, Sr. Advocate assisted by
Shri Abhishek Singh, Advocate.
For the Respondents : Smt Sheetal Dubey, Advocate.
ORDER
( 14/ 12/2012 ) Per : Hon. U.C.Maheshwari J.
The petitioners/ plaintiffs have filed this petition under Article 227 of the Constitution of India for quashment of the order dated 17.11.12 (Annexure P/17) passed by the Ist Judge to the Court of I ADJ, Panna in Misc. Civil Appeal No.17/12 affirming the order dated 18.10.12 passed by the II Civil Judge Class-II, Panna in COS No.44-A/12 whereby their application filed under Order 39 rule 1 and 2 of the CPC for issuing at interim injunction restraining the respondents to dispossess them from the disputed property described in the application as well as in the suit by themselves or from employees or the agency under execution of order dated 21.8.12 passed by the SDO respondent No.1 in Revenue Case No.97/B-121/2011-12 was dismissed.
2. The facts giving rise to this appeal in short are that the House No.38,39,40,41 and 42 situated in Katra Mohalla, Panna are recorded in the name of mother of the appellants, namely, Bhawani Bai in the record of local authorities according to which the aforesaid house is situated on the Nazul land bearing survey No. NE 1/2-B. Out of such land the disputed land bearing No.101 is 2 having the area 561 square meter which is shown in the map Annexure-A annexed with the plaint. Initially the owner/ occupier of the house was one Manik Joo Rao and in the courtyard of such house a temple of the Deity Bihari Joo was also situated. Such property being the personal property of Manik Joo Rao, he had given the same to Murlidhar the father of the petitioners vide some document in writing dated 15.7.1930. Since then their father Murlidhar alias Kishore Prasad Goswami was remain in occupation of such house as owner of the same. After death of said Murlidhar I n the year 1950, his widow, namely, Bhawani Bai got mutated her name in the record of the local authorities and in such premises, the petitioners are coming in possession of such property. Said Bhawani Bai also passed away in the year 1997. Later, in "Jan Sunwai" held by SDO Panna in Revenue Case No.97/B-121/11-12 vide order dated 21.8.12 the aforesaid disputed house No.38 to 42 has been declared to be the property of public temple of Bihari Joo and pursuant to that the name of Collector as Manager on behalf of State of Madhya Pradesh on the such property was directed to be mutated in the record of Municipality. Simultaneously, the Nazul Tehsildar, Panna was also directed to dispossess the petitioners from such property under the provision of section 248 of the Madhya Pradesh Land Revenue Code ( in short the 'Code' ). Subsequent to such order the petitioners/plaintiffs had filed the impugned suit for declaration of title over the aforesaid property with further declaration to declare the aforesaid order of SDO dated 21.8.12 to be ab initio void and perpetual injunction to protect the possession of the petitioners is also prayed against the respondents. Along with it some application for issuing ad interim injunction, as stated above, has also been filed.
3. In reply of the respondents by denying the averments of the application of the petitioners regarding title of the petitioners it is stated that the disputed houses were remained the property of Deity Bihari Joo temple and the petitioners 3 did not have any right or title over the same. It is also stated that as alleged the document dated 15.7.1930 being unregistered is not admissible. In addition to it, such document is also challenged on the ground that in such document the name of the scriber, his signature and the address is also not mentioned, hence the same is not admissible and on the basis of such document, no right or title could be inferred in favor of the petitioners or their predecessor and, in such premises, the aforesaid order of the SDO was justified and the direction to take action against the petitioners under section 248 of the Code was also justified. In such premises, the prayer for dismissal of the application was made.
4. After hearing both the parties, the trial court on consideration had dismissed the application of the petitioners. Being dissatisfied with such order the petitioners filed the appeal before the subordinate appellate court. On consideration, by affirming the order of the trial court, the same was dismissed by the impugned order, on which, the petitioners have come to this court with this petition for setting aside the impugned order Annex.P/16 and P/17 with a further prayer to allow their aforesaid application and issue the ad interim injunction against the respondents as prayed in such application.
5. Shri Ravish Agarwal, learned Senior Advocate assisted byShri Abhishek Singh Advocate after taking me through the papers placed on the record along with petition as well as the impugned order Annex.P/16 P/17 argued that the petitioners being in settled possession of the disputed property through their father and mother the predecessor by virtue of the aforesaid unregistered document dated 15.7.1930 executed by the then owner of the property, namely, Manik Joo Rao in favor of their father Murlidhar alias Kishore Prasad Goswami have the right to protect their possession. Thus on account of such possession irrespective whether it is legal or illegal, the petitioners are entitled for issuing ad interim injunction against the respondents till disposal of the suit as prayed in the 4 application. In continuation he also argued that in last near about more than 80 years, the petitioners through their parents were enjoying the property. During this period they also mortgaged some part of it in the shape of the sale with some other person and later on the same was redeemed and such transaction were carried-out through registered documents. Besides this, for some period they also rented some part of such property to the Government on rent for their offices which were vacated later-on. During such period they also received the rent from the government department. He also said that taxes of the local authorities of such property was also paid by the petitioners. So, at the initial stage of the suit, it could not be assumed that there is no prima facie title and possession of the petitioners over the property and, in such premises the courts below could not have refused the prayer for issuing ad interim injunction. By referring the proviso and some provisions of section 248 of the Code he also argued that such provision is not applicable to the disputed property as the same was in existence prior to coming into force of the Code and such provision is also not applicable to the constructed property situated in the municipal area. He also said that in last more than 80 years, as such, since 1930 till today no step was taken on behalf of the respondent/State to take possession of such property from the petitioners or from their predecessor. So, it could not be assumed that the property was remained with the respondents at any point of time or the same was vested with State of M.P. He also said that the impugned order of the SDO being in a proceeding which is not permissible under any law or the provision, being nullity, is not binding against the petitioners and on that basis no inference could be drawn against the petitioners or to hold that the property is a public property or the property of some Deity and, in such premises, there is a prima facie case in favor of the petitioners and the balance of convenience was also in favor of the petitioners and it was apparent before the courts below that on not issuing the interim injunction as 5 prayed, on dispossessing the petitioners by the respondents, they have to suffer irreparable injury. Inspite that the courts below have concurrently dismisses their application contrary to the settled proposition of the law and prayed for allowing his application and setting aside the impugned orders by allowing this petition. In support of his contention he also placed his reliance on decision of the Apex Court in the matter of Rame Gowda (dead) By Lrs. Vs. M. Varadappa Naidu (dead) By Lrs. And another (2004) 1 SCC 769 and in the matter of Lal BahadurSinghVs. State of M.P. 1998(2) MPLJ-26 and in the matter of Anamallai Club Vs. Government of T.N. And others-(1997) 3 SCC 169.
6. Keeping in view the arguments advanced by the learned Senior counsel, I have carefully gone through the petition as well as the papers annexed with it along with the impugned order Annex.P/16 and P/17 passed by the courts below.
7. It is settled proposition of law that in order to issue ad interim injunction, the Court is bound to examine three questions (a) whether there is any prima facie case in favor of the plaintiffs or the person who has filed the application under Order 39 rule 1 and 2 of the CPC ; (b) whether the balance of convenience is in favor of such party and; (c ) whether in the absence of any interlocutory injunction in pendency of the suit, the person like the petitioners/ plaintiffs of the present matter, have to suffer any irreparable injury.
8. In view of the aforesaid in order to examine the prima facie case in favor of the petitioners, I have perused the papers placed on the record along with the petition. As per impugned suit the petitioners have filed the suit for declaration and perpetual injunction declaring themselves to be the owner of the property on the basis of the unregistered document dated 9.7.1930. According to such document the same was, as alleged, executed by the then owner of the property Mus. Manik Joo Komerao in favor of Mus. Kishore Prasad S/o Mahant Priyalal Gusai. It is apparent fact from such document that the name of Murlidhar the 6 father of the petitioners, was not stated in it as beneficiary or the transferee.It is also apparent fact that the impugned property inspite the immovable property such document was not got registered. The same is neither signed by the scriber, who had written the same nor the same is signed with the signature of the attesting witnesses. In order to show the prima facie that such document was executed by the then owner of the proeperty, as alleged, Manik Joo, no affidavit of any witness has been filed. True it is that such document is written on some stamp paper of the value of "Ek Aana" but at the back side of the document on the endorsement of the stamp vendor, neither his seal nor his signature is placed. Subsequent to it for years together on the basis of such document no steps to get mutation over the property in the record of the local authorities was taken by the beneficiary of such document, namely, Koshore Prasad Goswami. So, in the lack of above mentioned material things in the document, at the initial stage of the suit, the same could not be treated to be prima facie genuine document to hold the prima facie case in favor of the petitioners/plaintiff. Although some receipts regarding payment of the taxes to the local authorities issued in the name of Smt Bhawani Bai widow of Shri Kishore Prasad Goswami have been placed on the record but mere payment of the taxes to the municipality or the local authorities does not give any prima facie circumstance to draw the inference that the petitioners have any title or possession over the property. So, in such premises, it could not be deemed or assumed that such property was given to the father of the petitioners in the year 1930 because in the lack of proper stamp on the aforesaid document and its registration, the same is inadmissible under the law and whenever the document is inadmissible then it could not be taken into consideration for any purpose either to hold the title of the petitioners or their possession over the property. As per available record the father of the petitioner being resident of some village of Panna Tehsil everywhere his name was recorded as Murlidhar but in some record of the municipality so also in 7 the proceedings of mutation of the property his name was mentioned as Murlidhar alias Kishore Prasad Goswami, so such conflicting position does not give any circumstance to hold the prima facie case in favor of the petitioners. It is settled proposition of law that mere payment of the taxes to the local authorities does not give title or the occupancy right over the property to the person concerned. Keeping in view the aforesaid circumstance, on examining the matter, it is apparent that the petitioners have failed to prove prima facie through any admissible document that such property was given to their predecessor said Murlidhar. On the contrary from the record it is apparent that such property was remained to be the property of the Deity, namely, Bihari Joo and the Deity being minor under the legal position its property could not be transferred or alienated in any manner. It is also settled proposition of law that the mutation in the record of the local authorities or in the revenue papers do not confer any title to the person whose name is recorded by mutation. Such record is prepared and kept by the authorities only for the fiscal purposes. So, on the basis of the record of the local authorities in which the name of the father of the petitioner Murlidhar @ Kishore Prasad Goswami was recorded, does not give the circumstance to hold prima facie case in favor of the petitioners. In the lack of any legal title and possession over the property if any documentation either for sale or for creating the mortgage was carried-out by the petitioners or their predecessor then such documentation had also not given any right to the petitioners to hold the prima facie case in their favor.
9. On going through the sale deed dated 24.7.1980 Annex.P/6 and 22.7.1980 Annex.P/7, I have not found any averment in it showing that Bhawani Bai or her husband acquired the title or the legal possession over the property through the aforesaid document on dated 9.7.1930 Annex.P/1. If such document was in existence then while executing the aforesaid sale deed Annx.P/6 and P/7, the date of such document ought to have been stated in such sale deeds. In the lack of 8 such information in the above mentioned sale deeds Anenx.P/6 and P/7, it could be prima facie deemed that on the date of execution of sale deed, the document Annex.P/1 was not in existence.
10. On perusing the other papers available on the record, I have not found any document on the strength of which the name of Bhawani Bai or the petitioners or their father was mutated in the record of the local authorities. In the lack of any prima facie proof of acquiring the title or possession of the property, mere on the basis of the aforesaid inadmissible document Annex.P/1, the prima facie case could not be held in favor of the petitioners/plaintiffs.
11. Apart the above as per concurrent findings of the court's below in the record of the Municipality, the disputed property long before was recorded in the name of Bihari Joo Mandir and on what basis such name was deleted from the record and the name of the petitioners predecessor was mutated, the same has not been proved by prima facie evidence by the petitioners. In such premises, it appears that taking into consideration all these circumstances, the courts below have held that the petitioners have failed to prove the prima facie case in their favor.
12. Besides the aforesaid, on examining the case on the question of balance of convenience, I am of the considered view that as per the settled proposition of the law, the illegal possession of the person over the property could not be protected by issuing any ad interim injunction in his favor. Only the legal possession of the person can be protected by issuing ad interim injunction because in the lack of any legal right, the party is not entitled to get any favorable order in his favor. The perpetual injunction or/and the interlocutory injunction being relief of equity, could be granted in favor of that person only who comes before the court with clean hands and not to that person who has come to the court with some manipulation in the documents of the disputed property.
13. In view of the aforesaid discussion and as per concurrent findings of the 9 court's below, it is apparent that the petitioners/ plaintiffs could neither established the prima facie case in their favor nor prima facie established their legal possession over the property through any legal and admissible document. So, in such premises, the approach of the courts below holding that the balance of convenience is not in favor of the petitioner does not appear to be contrary to the record or the existing legal position. My this view is fully fortified by the decision of this court in the matter of Kamal Singh Vs. Jairam Singh- 1986 (1) MPWN Note -116.
14. In view of the aforesaid discussion on examining the third question whether in the absence of the interlocutory injunction in favor of the present petitioners they have to suffer the irreparable injury is concerned, it is suffice to say that in the absence of the prima facie case and balance of convenience the petitioners are not entitled to get the interlocutory injunction as prayed and in the available circumstances when the petitioners have failed to prove their prima facie title or the legal possession over the property then it could not be said that in the absence of interlocutory injunction, the petitioners have to suffer any irreparable injury. If there is no any substantial right, title or the legal possession of the petitioners over the property then even on dispossessing such persons from the property in accordance with law by the authorities then it could not be said that petitioners have to suffer the irreparable injury. As such there is no legal right or the possession of the petitioners over the property then in the absence of the interlocutory injunction, no irreparable injury could be caused to the petitioners. So, in such premises also, the approach of the trial court holding that no irreparable injury could be caused to the petitioners in the absence of the interlocutory injunction, does not require any interference at this stage.
15. So far the case laws cited on behalf of the petitioners is concerned, there is no dispute regarding the principle laid down in such cases but in the available 10 scenario, the same are not helping to the petitioners. The Apex Court, in the matter of Rame Gowda (supra) has decided the case on the basis of settled possession of the concerning petitioner but in view of the aforesaid discussion, the petitioners have failed to prove prima facie their settled possession over the disputed property. The settled possession could be deemed only on availability of some legal circumstance or the admissible documents whereby the property was acquisition or it's possession was obtained by the party. In the case at hand, in the lack of any such document or the circumstance the cited case is not helping to the petitioners.
16. The other cited case law in the matter of Anamallai Club (supra) being decided in a different situation and circumstance taking into consideration the provision of Tamil Nadu Public Premises ( Eviction of unauthorized possession) Act, 1975 with respect of some government/ public premises, is distinguishable on facts from the case at hand. Hence the same is not helping to the petitioners.
17. So far the arguments advanced by the counsel on the basis of proviso of section 248 of the Madhya Pradesh Land Revenue Code is concerned, I am of the considered view that in the lack of any title or the legal possession of the petitioners over the property they have no right to get any shelter or protection of such provision. Apart this such question could be decided after holding the appropriate proceedings by the concerned authorities who has the jurisdiction to entertain such proceeding and decide the same or in any case by the civil court after recording the evidence at the stage of appreciation of the same but prior to that in the lack of any prima facie case or balance of convenience in favor of the petitioners or the circumstance showing that in the absence of any interlocutory injunction any irreparable injury could be caused to any legal rights or possession of the petitioners. On this ground also petitioners were not entitled to issue any interim injunction in their favor.
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18. So far the case law cited in this regard cited on behalf of the petitioner in the matter of Lal BahadurSingh (supra) is concerned, such case was decided taking into consideration the provision of Article 112 of the Limitation Act and the question of adverse possession of the land but in the case at hand it is apparent that the petitioners have failed to prove prima facie that on which date they declared themselves to be the owner of the disputed property in the knowledge of its true owner and they remained in possession of the same without any interruption for the period prescribed under the law to perfect the right over the property by adverse possession. So in such situation this case law is also not helping to the petitioners.
19. Apart the above, the approach of the trial courts below which is based on appreciation of the available factual matrix and the documents available on the record, could not be interfered under the revisional jurisdiction or the jurisdiction of this court vested under Article 227 of the Constitution of India unless some material circumstances are pointed out by the parties to show that they had legal possession over the property and same was not considered or ignored by the courts below. In such premises also the concurrent approach of the trial court dismissing the application of the petitioners for issuing ad interim injunction do not require any interference at this stage. My such view is based on the decision of the Apex Court in the matter of The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar,Hyderabad and Another Vs. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad- AIR 1973 SC-76 so also in the matter of Mani Nariman Daruwala and Bharucha (deceased) through Lrs and others Vs. Phiroz N. Bhatena and others With Meharji K. Karkaria and another Vs. Phiroz N. Bhatena and others- AIR 1991 SC 1494 so also in the matter of Kokkanda B. Pondacha and others Vs. K.D Ganapathi and another-AIR 2011 SC 1353 .
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20. In view of the aforesaid, I have not found any perversity, illegality, irregularity or anything against the propriety of the law in the orders of the courts below requiring any interference under Article 227 of the Constitution of India. Consequently, this petition being devoid of any merits, is hereby dismissed at the stage of motion hearing.
(U.C.Maheshwari) Judge MKL 13