Madhya Pradesh High Court
Smt. Chanda Nahar vs Smt. Morina Bohra @ Smt. Mansi Dhariwal on 6 January, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:208
1 MP-5785-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 5785 of 2024
SMT. CHANDA NAHAR AND OTHERS
Versus
SMT. MORINA BOHRA @ SMT. MANSI DHARIWAL AND OTHERS
Appearance:
Shri Nitin Phadke - Advocate for the petitioners.
Shri Amit Raj - Advocate the respondent No.1.
Reserved on : 12.12.2024
Pronounced on : 06.01.2024
ORDER
This petition under Article 227 of the Constitution of India has been preferred by defendants No.2 to 4/petitioners being aggrieved by the order dated 16.07.2024 passed in MCA No. 91/2024 by the 29th District Judge, Indore reversing the order dated 07.05.2024 passed in Civil Suit No.869A/2023 by the 9th Civil Judge, Junior Division, Indore and allowing the application under Order 39 Rule 1 and 2 of the CPC preferred by plaintiff/respondent No.1.
2. As per the plaintiff, late Shri Prakash Bohra purchased the suit property by a registered sale deed dated 07.09.1996 for a sum of Rs.5 Lakhs in the name of himself and Smt. Asha Bohra. Shri Prakash Bohra was issueless and he along with his first wife late Smt. Alpana Bohra had adopted the plaintiff which adoption took place through ceremony of giving the child Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 17:10:43 NEUTRAL CITATION NO. 2025:MPHC-IND:208 2 MP-5785-2024 by biological parents to the adopting parents. Defendant No.1 is biological mother of plaintiff and giving and taking ceremony took place in front of all family members. On 01.11.1992 Smt. Alpana had died. Thereafter, Prakash Bohra had remarried Asha Bohra on 21.02.1994. They all treated plaintiff to be their daughter. From second- marriage also Shri Prakash Bohra had no issues. He died on 20.07.2010. On 20.04.2023 Smt. Asha Bohra died. Thereafter defendants No.1 to 3, sisters and nephew of Prakash Bohra threatened plaintiff with dire consequences stating that they will forcibly evict her from the suit property though by inheritance they do not have any title therein. After death of father and mother of plaintiff, the suit property will exclusively be inherited by her being sole heir of late Prakash Bohra.
3. On such contentions, the plaintiff has instituted an action before the trial Court for declaration of her title to the suit property and for permanent injunction restraining the defendants from interfering with her possession over the same. Along with the plaint she also filed an application under Order 39 Rule 1 and 2 of the CPC for issuance of temporary injunction restraining the defendants from interfering with her possession over the suit property.
4. The defendants 2 to 4 contested the application by filing their reply submitting that plaintiff was never adopted by Prakash Bohra and Alpana Bohra or by Prakash Bohra and Asha Bohra. No document of adoption has been produced by her nor is there any evidence of her being given and taken in adoption. She is not the natural heir of Smt. Asha Bohra. By a Will dated 18.05.2023 Smt. Asha Bohra has bequeathed the suit property in their Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 17:10:43 NEUTRAL CITATION NO. 2025:MPHC-IND:208 3 MP-5785-2024 favour. They are in possession thereof.
5. The trial Court rejected plaintiff's application for issuance of temporary injunction by holding that she has not challenged the Will dated 18.04.2023 set up by defendants 2 to 4 and that her possession over the suit property has been termed as an encroacher hence no temporary injunction can be issued in her favor. The said order has been set aside by the appellate Court by observing that defendants 2 to 4 have themselves admitted that plaintiff is in possession of the suit property though as an encroacher which nature of possession can only be decided after recording of evidence of the parties and if such possession is not protected during pendency of the suit, she would be forcibly dispossessed without following the lawful procedure.
6. Learned counsel for defendants 2 to 4 has submitted that in the plaint there is no pleading whatsoever as required under the law regarding plaintiff having been adopted by Prakash Bohra and Alpana Bohra. There is no document of adoption. The date, time and the persons in whose presence the adoption was made has also not been clarified. The necessary essential ingredients for claiming adoption are wholly absent. There is no mention anywhere in the documents executed by Prakash Bohra or Asha Bohra that plaintiff is their adopted daughter. The name of plaintiff was earlier Mirena Bohra but was subsequently changed to Mansi Dhariwal which clearly shows her ill intentions. She has filed the suit within six days of death of Smt. Asha Bohra which shows her greed. The appellate Court has erred in exceeding its jurisdiction in setting aside the well considered and reasoned order passed by the trial Court. It is hence submitted that the impugned order deserves to be Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 17:10:43 NEUTRAL CITATION NO. 2025:MPHC-IND:208 4 MP-5785-2024 set aside. Reliance has been placed on the decision of the Apex Court in Skyline Education Institute (India) (P) Ltd. v. S.L. Vaswani and anothers, AIR 2010 SC 3221, Mohd. Mehtab Khan and others v. Khushnuma Ibrahim Khan and others, (2013) 9 SCC 221 and Union of India v. K.V. Lakshman and others, AIR 2016 SC 3139.
7 . Per contra, learned counsel for the plaintiff has submitted that defendants 2 to 4 have themselves admitted that plaintiff is in possession of the suit property. The nature of such possession can only be decided after recording of evidence of the parties. If during pendency of the suit plaintiff is forcibly dispossessed it would cause irreparable injury to her. The will set up by defendants 2 to 4 was executed on the very day Smt. Asha Bohra had expired which itself renders the same as suspicious. The plaintiff being in possession is entitled to its protection during pendency of the suit.
8. I have considered the submission of learned counsel for the parties and have perused the record.
9. The plaintiff has set up her title to the suit property by virtue of being adopted by Prakash Bohra and Alpana Bohra and consequently being daughter of Prakash Bohra whose property devolved upon Asha Bohra upon his death. The defendants 2 to 4 have set up title to the suit property by virtue of a will executed in their favor by Asha Bohra. Both the parties have set up adverse claim of title to the suit property which can only be decided on merits upon recording of their evidence. For decision of the application for issuance of temporary injunction, the factum of possession over the suit property assumes importance. This would be particularly more so since Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 17:10:43 NEUTRAL CITATION NO. 2025:MPHC-IND:208 5 MP-5785-2024 neither of the parties are direct lineal descendants of either Prakash Bohra or Asha Bohra. Plaintiff claims under an adoption whereas defendants 2 to 4 claim under a will.
10. The trial Court had recorded a finding that plaintiff is in possession of the suit property. However, it decided not to protect her possession only for the reason that defendants 2 to 4 contended her possession to be by way of encroachment. Whether such possession is by way of encroachment or is under a legal title can only be decided at the time of decision of the suit and presently only for the stand taken by defendants 2 to 4, possession of plaintiff could not have been termed to be by way of encroachment. It is well settled in law that the status with respect to the suit property as on the date of institution of the suit ought to be preserved and maintained. Defendants 2 to 4 had themselves given an application before the Police authorities to the effect that plaintiff has taken possession of the suit property. Thus factum of possession of plaintiff has been admitted by defendants 2 to 4 themselves. Such possession ought to have been protected during pendency of the suit and the status as on the date of filing of the suit ought not to have been permitting to be disturbed.
11. Despite finding plaintiff to be in possession of the suit property the Trial Court had declined to issue temporary injunction in her favour which was wholly illegal which illegality has been rightly corrected by the appellate Court. While doing so it has not relied upon any additional document filed by plaintiff in the appeal hence the contention of learned counsel for defendants 2 to 4 that the impugned order has been passed by relying upon Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 17:10:43 NEUTRAL CITATION NO. 2025:MPHC-IND:208 6 MP-5785-2024 additional document admitted in the appeal is not liable to be accepted. In the fact situation, the judgments relied upon by learned counsel for the defendants 2 to 4 do not help him in any manner.
12. Thus in view of the aforesaid discussion, I do not find any error having been committed by the appellate Court in passing the impugned order. The petition is consequently found to be devoid of any merits and is hereby dismissed.
(PRANAY VERMA) JUDGE jyoti Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-1-25 17:10:43