Madhya Pradesh High Court
Dwarka Prashad vs State Of Madhya Pradesh on 21 August, 2025
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NEUTRAL CITATION NO. 2025:MPHC-JBP:39666
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 21st OF AUGUST, 2025
MISC. PETITION No. 1564 of 2022
DWARIKA PATHAK
Versus
SMT. RAMAN AND OTHERS
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Appearance :
Shri Shambhoo Dayal Gupta - Advocate for the petitioner.
Shri Avinash Zargar - Advocate for the respondent No.1.
Ms.Shraddha Tiwari - Panel Lawyer for the respondent/State.
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and
MISC. PETITION No. 1722 of 2021
DWARKA PRASAD
Versus
STATE OF MADHYA PRADESH AND OTHERS
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Shri Ramakant Awasthi - Advocate for the petitioner.
Shri Janak Lal Soni - Advocate for the respondent/Caveator.
Shri Ram Narayan Shah - Advocate for the respondent/Caveator.
Ms.Shraddha Tiwari - Panel Lawyer for the respondent/State.
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ORDER
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 01-09-2025
17:29:39
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NEUTRAL CITATION NO. 2025:MPHC-JBP:39666 Looking to the similitude of the facts of M.P.No.1564/2022 and M.P.No.1722/2021, both the cases are being heard and decided by this common order.
M.P.No.1564/2022 is taken as lead case and the facts are being taken therefrom for deciding both the petitions.
By way of M.P.No.1564/2022, the petitioner has challenged the order dated 10.03.2022 (Annexure P/8) passed by Additional District Judge, Lavkush Nagar, Distt.Chhatarpur; whereby, the appeal filed by the petitioner/plaintiff has been dismissed affirming the order passed by the Civil Court on the application submitted by the petitioner/plaintiff under Order 39 Rule 1 & 2 of CPC.
2. It has been submitted by the learned counsel for the petitioner/plaintiff that both the Courts below have not considered the prima facie case, balance of convenience and irreparable loss in favour of the petitioner/plaintiff and have committed grave error of law and jurisdiction which require interference by this court under Article 227 of the Constitution of India.
3. It has been submitted that a suit has been filed by the petitioner/plaintiff initially for declaration of possession and permanent injunction which was later on amended for declaration of title in the year 2023. The suit has been filed in the year 2021. It has been submitted that the cause of action accrued to the petitioner/plaintiff on 07.04.2021 when the daughter of Ramratan (defendant No.1) has threatened the petitioner/plaintiff for taking forcible possession of land bearing survey No.643.
4. It is submitted that a sale deed was executed by deceased Ramratan in the year 1987 in respect of the land mentioned in the sale deed at page Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 01-09-2025 17:29:39 3 NEUTRAL CITATION NO. 2025:MPHC-JBP:39666 11 of Annexure R/2. It has been averred in the plaint that though land of survey No.643 was not transferred by way of registered sale deed to the petitioner/plaintiff but as all the entire surrounding land was sold to the petitioner/plaintiff, they have been in possession since the date of execution of sale deed and on that basis declaration of possession as well as permanent injunction has been sought, however, later on in the year 2023, an application for amendment was filed in regard to declaration of title with the pleading that by mistake survey No.643 has been omitted to be typed in the sale deed, however, the intention of the parties was to sale the said survey number to the petitioner/plaintiff and on that basis amendment has been incorporated.
5. Admittedly, the amendment which was sought by the petitioner/plaintiff in the plaint was subsequent to the decision on the application under Order 39 Rule 1 & 2 of CPC and Misc. Appeal. It is submitted by learned counsel for the petitioner/plaintiff that the amendment has been brought in when they came to know about the revenue proceedings initiated by the respondent (Daughter of original vendor). It is submitted that an illegal order has been passed by the SDO on an application under section 115 of the Madhya Pradesh Land Revenue Code, 1959 (for brevity 'the Code of 1959') directing correction of entries by deleting the name of the petitioner/plaintiff and to enter name of respondent in the revenue record against survey No.643.
6. It has been submitted that the said order was challenged by the petitioner/plaintiff in an appeal before the Additional Collector which was dismissed by order dated 26.11.2019 (Annexure P/2) in M.P.No.1722/2021. The said order was further challenged in Second Appeal before the Additional Commissioner which was also dismissed Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 01-09-2025 17:29:39 4 NEUTRAL CITATION NO. 2025:MPHC-JBP:39666 vide order dated 05.04.2021 (Annexure P/1) of MP No.1722/2021. Thus, both the orders are under challenge in M.P.No.1722/2021 on the ground that as per Section 115 of the Code of 1959, for correction of any entry which was five years previous to the application under Section 115 can be corrected only after taking recommendation from the Collector. As in the present case in hand, the permission has not been sought from the Collector, the order passed by the SDO dated 16.04.2019 (Annexure R/5) and subsequent orders dated 26.11.2019 and 05.04.2021, Annexure P/2 and Annexure P/1, respectively are illegal and without jurisdiction, therefore, prayed for quashment of these orders. It has also been submitted that the said orders are also bad in law because no opportunity of hearing was granted to the petitioner/plaintiff whose name was recorded in the revenue record prior to correction.
7. It has been submitted by learned counsel for the petitioner/plaintiff that in MP No.1564/2022, orders passed by the Civil Court and the Appellate Court in Misc. Appeal are bad in law, suffers from jurisdictional error, therefore, calls for interference by this Court and in M.P.No.1722/2021, orders Annexure P/2 and Annexure P/1 dated 26.11.2019 and 05.04.2021 passed by Additional Collector and Additional Commissioner respectively in revenue jurisdiction are against the provisions of law and without jurisdiction, therefore, deserves to be quashed.
8. Per contra, refuting the submissions of learned counsel for the petitioner/plaintiff, counsel for the respondent has submitted that from the perusal of the plaint, it is apparent that initially the petitioner/plaintiff has sought relief only on the basis of continuous possession over survey No.643 (disputed land). It has further been submitted that father of the Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 01-09-2025 17:29:39 5 NEUTRAL CITATION NO. 2025:MPHC-JBP:39666 respondent had never executed sale deed in favour of the petitioner/plaintiff in respect of survey No.643 which is also apparent from the sale deed Annexure R/3. It is further submitted that the petitioner/plaintiff in connivance with the revenue authorities has got his name entered in Khasra entry without any order of mutation which is reflected from the Khasra entry Annexure R/3 of the year 1990 and 1991. The land was said to be sold in the year 1986-1987 and the mutation which has been done in the year 1987 vide order dated 06.10.1987 (Annexure R/3), land bearing survey No.643 was never mutated as it was never sold by the father of the respondent and later on, how such land has been entered in Khasra entry is not known. Therefore, the respondent had preferred an application for correction of entry when she came to know in the year 2019 which was allowed vide order dated 16.04.2019 by the SDO which was affirmed by the Additional Collector and Additional Commissioner in the appellate revenue jurisdiction. Therefore, the orders passed by the revenue authorities are absolutely in consonance of law and on the basis of record and cannot be called for any interference by this court under Article 227 of the Constitution of India. It is further submitted by learned counsel for the respondent that both the lower courts have applied their mind on the principle of injunction under Order 39 Rule 1 & 2 of CPC and has denied temporary injunction in favour of the petitioner/plaintiff. It is further submitted that the injunction cannot be granted in favour of a trespasser or an unlawful possession holder against the true owner.
9. Reliance has been placed on the judgment of Hon'ble Apex Court in the case of Mahadeo Savlaram Shelke vs Puna Municipal Corporation (1995) 3 SCC 33, Sopan Sukhdeo Sable vs Assistant Charity Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 01-09-2025 17:29:39 6 NEUTRAL CITATION NO. 2025:MPHC-JBP:39666 Commissioner (2004) 3 SCC 137, Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, (2022) 12 SCC 128 and Premji Ratansey Shah vs. Union of India (1994) 5 SCC 547 to state that temporary injunction cannot be granted against a true owner.
10. On the basis of the aforesaid, it has been prayed that both the courts below have exercised their jurisdiction under Order 39 Rule 1 & 2 of CPC and under Order 43 Rule 1 of CPC correctly and no interference is required by this Court under Article 227 of the Constitution of India.
11. It has further been submitted that this Court under supervisory jurisdiction enshrined under Article 227 of the Constitution of India cannot substitute the finding arrived at by the Courts below in its civil jurisdiction. The relief of temporary injunction is equitable relief and the courts have to exercise its discretion judicially. The courts below have exercised jurisdiction judicially, therefore, no interference is called for.
12. It is prayed that the petitions of the petitioner/plaintiff are misconceived and deserves to be dismissed.
13. Heard learned counsel for the parties and perused the record.
14. It is evident from the impugned orders dated 05.04.2021 (Annexure P/1) and 26.11.2019 (Annexure P/2) passed by the appellate Court under Order 43 Rule 1 of CPC and under Order 39 Rule 1 & 2 of CPC that the Court after dwelling upon the pleadings and rival submissions of the parties has held that the petitioner/plaintiff was not the owner of the land bearing Survey No.643 and prima facie could not establish the possession on the basis of any document. It is further held that the revenue record suggest that after the death of deceased Ramratan, name of his daughter has been mutated in the revenue record against survey No.643. It is seen that the entries of the year 1989- 1990 are not believable as no substantial Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 01-09-2025 17:29:39 7 NEUTRAL CITATION NO. 2025:MPHC-JBP:39666 record of such entries has been filed before the Court below. It is also seen from the record that the Khasra Entires (Annexure P/3) submitted by the petitioner/plaintiff in M.P.No.1564/2022, the name of the petitioner/plaintiff finds place in column No.3 in the year 1990-1991. Prior to that, when the land was sold in the year 1987, no order of mutation has been filed. It is the submission of learned counsel for the respondent that such order has never been passed in favour of the petitioner/plaintiff, as apparent from Annexure R/3, which is the mutation order in favour of the petitioner/plaintiff in respect of all the survey numbers except Survey No.643. Thus, from the record, it is clear that such entry has been made in the Khasra entry of the year 1991 without any base or record. It has further been found by this court that earlier the petitioner/plaintiff has filed suit for declaration of possession and permanent injunction on the basis of continuous possession. No relief for declaration of title in respect of survey No.643 has been sought. After the decision by both the courts below under Order 39 Rule 1 & 2 of CPC, the application for amendment has been filed for seeking declaration of title over survey No.643 on the basis that such survey No.643 had been omitted to be typed in the sale deed Annexure R/3.
15. This Court has to see prima facie case, balance of convenience and irreparable loss in favour of the parties. The matter in regard to the title is subject to trial which has to be seen by the Court after due examination of the evidence of the parties.
16. In the case of Mahadeo Savlaram Shelke vs Puna Municipal Corporation (1995) 3 SCC 33, the Hon'ble Apex Court has held as under :
"9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. ...."Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 01-09-2025 17:29:39 8
NEUTRAL CITATION NO. 2025:MPHC-JBP:39666
17. Further, in the case of Sopan Sukhdeo Sable vs Assistant Charity Commissioner (2004) 3 SCC 137, Hon'ble Apex Court has held :
"25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963, can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn. [(1995) 3 SCC 33] it was held, after referring to Woodroffe : Law Relating to Injunctions; Goyle, L.C. : Law of Injunctions; Bean, David :
Injunctions; Joyce : Injunctions and other leading articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha v. Municipal Corpn. of Delhi [(1993) 3 SCC 161] wherein it was observed that injunction is discretionary and that : (SCC p. 175, para 31) "[J]udicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court."
26. Reference was also made to Dalpat Kumar v. Prahlad Singh [(1992) 1 SCC 719] in regard to the meaning of the words "prima facie case" and "balance of convenience" and observed in Mahadeo case [(1995) 3 SCC 33] that : (SCC p. 39, para 9) "9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession."
27. The question of forcible possession as claimed is also a matter which can be pressed into service by the parties before the trial court and if raised, the court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 01-09-2025 17:29:39 9 NEUTRAL CITATION NO. 2025:MPHC-JBP:39666 law. We do not think it necessary to express any opinion in that regard."
18. Also, in the case of Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, (2022) 12 SCC 128, Hon'ble Apex Court has held :
"25. An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law."
19. The law laid down by the Hon'ble Apex Court in the cases of Mahadeo Savlaram Shelke (supra), Sopan Sukhdeo Sable (supra) and Padhiyar Prahladji Chenaji (supra) when applied on the facts of the case, this Court is of the considered opinion that the petitioner/plaintiff was not a true owner of the land bearing survey No.643 on the basis of the sale deed. As held by the Hon'ble Apex Court, no relief of injunction can be granted against the true owner.
20. Respondent being the daughter of the original vendor whose name has been record as Bhumiswami after the correction of entry against the petitioner, no relief for temporary injunction can be granted against her. Even for the sake of argument, if the fact of continuous possession of petitioner/plaintiff is considered, then also on the basis of the record, the petitioner/plaintiff could not satisfy this Court that how the entry in the Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 01-09-2025 17:29:39 10 NEUTRAL CITATION NO. 2025:MPHC-JBP:39666 year 1990-1991 has been made in the revenue record against survey No.643 and now at the present stage when the record has been corrected, no entry of the petitioner/plaintiff is found in the revenue records. Thus, petitioner/plaintiff has failed to establish prima facie case before this Court in respect of the suit land bearing survey No.643.
21. Considering the orders of the revenue Court, Annexure P/1 and Annexure P/2, it is evident that the original Court of correction i.e. SDO has not taken permission from the Collector which is mandated under Section 115 of the Code of 1959. However, the findings which have been arrived at by both the Courts below are justified on the basis of the record but the formality which has been mandated under the Code of 1959 is to be followed, therefore, orders passed by the revenue Courts dated 26.11.2019 and 05.04.2021, Annexure P/2 and Annexure P/1 respectively are hereby quashed and the matter is remanded back to the SDO to take proper permission from the Collector and pass fresh orders for correction of entries.
22. Accordingly, M.P.No.1564/2022 is hereby dismissed and M.P.No.1722/2021 is disposed of in above terms.
(DEEPAK KHOT) JUDGE anand Signature Not Verified Signed by: ANAND KRISHNA SEN Signing time: 01-09-2025 17:29:39