Madhya Pradesh High Court
Alaknanda Awasthi vs Durga Prasad Upadhyay on 9 July, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 09th OF JULY, 2024
M.P. No.4155 of 2023
ALAKNANDA AWASTHI
Vs.
DURGA PRASAD UPADHYAY AND OTHERS
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Shri Rajesh Maindiretta - Advocate for the petitioner/defendant No.1.
Shri Aditya Adhikari - Senior Advocate with Shri Praveen Kumar
Chaturvedi - Advocate for respondent No.1/plaintiff.
Smt. Shraddha Tiwari - Panel Lawyer for respondent/State.
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Reserved on : 03.05.2024
Pronounced on : 09.07.2024
ORDER
This petition is under Article 227 of the Constitution of India assailing the validity of order dated 10.12.2022 (Annexure-P/8) passed in Miscellaneous Civil Appeal No.256/2022 [Durga Prasad Vs. Tejilal and others] by the Court of District Judge (Fourth), Jabalpur, M.P. granting injunction in favour of respondent No.1/plaintiff by modifying the order passed by the Court of Eighth Civil Judge, Senior Division, Jabalpur on 27.09.2022 (Annexure-P/7) whereby an application filed by the plaintiff under Order 39 Rule 1 and 2 of the Code of Civil Procedure had been rejected by the trial Court.
2. The exposure of facts in brief are that respondent No.1/plaintiff had filed a suit for declaration and permanent injunction against the petitioner 2 and other respondents stating therein that being the owner of land situates at Mouja Lamheti, Settlement No.644, P.C. No.36, Tahsil and District Jabalpur bearing Khasra No.47/1 with area admeasuring 2.7300 hectares, he is in possession of the said land.
2.1 It was averred in the plaint that the suit property is an ancestral property of respondent No.1/plaintiff. According to the plaintiff, earlier it was Khasra No.17 and after settlement, khasra numbers got renumbered and thereafter it became Khasra No.47 of which the area was 11.440 hectares. It was further stated in the plaint that after the death of plaintiff's parents, there was a partition amongst the brothers in which respondent No.1/plaintiff had acquired the land admeasuring 2.7300 hectares. According to the plaintiff, so far as defendant No.1 (respondent No.2) is concerned, his land is in Khasra No.82, but he got his name mutated in respect of land bearing Khasra No.47/1. Accordingly, it was alleged in the plaint that defendant No.1 (respondent No.2) had sold the property bearing Khasra No.47/1 area admeasuing 2.7300 hectares to the petitioner and respondent Nos.3 and 4 by a registered sale-deed which according to respondent No.1/plaintiff is illegal and as such, in the suit filed by the plaintiff, he had asked that declaring him a bhumiswami of land situates at Khasra No.47/1 area admeasuring 2.7300 hectares, the sale-deed executed in favour of the petitioner and respondent Nos.3 and 4 be declared null and void. Along with the plaint, respondent No.1/plaintiff had also filed an application under Order 39 Rule 1 and 2 read with Section 151 of the CPC claiming temporary injunction restraining the petitioner and other respondents from interfering with his possession over the suit property.
2.2 The petitioner and other respondents had filed reply to the said application stating therein that as per the provision of Section 34 of the Specific Relief Act, a suit for declaration is not maintainable if possession 3 is not claimed. That apart, they had denied the other averments made in the plaint as also in the application filed under Order 39 Rule 1 and 2 of the CPC. It was claimed by them that the land in question originally belongs to respondent No.2/defendant No.1 which got illegally mutated in the name of the plaintiff in the revenue records. According to the petitioner and respondent No.4, they acquired the property by virtue of registered sale-deed and on the basis of that, their names got mutated in the revenue records. The petitioner had also filed several documents relating to demarcation which got done by the revenue authorities showing that the petitioner is in possession of the property whereas the plaintiff failed to produce any documentary proof that the land in question is his ancestral property and he is still in possession of the same and as such, it was claimed by the petitioner and other respondents that neither any prima facie case is made out in favour of the plaintiff nor the balance of convenience lies in his favour but on the contrary, the petitioner and respondent No.4 shall suffer irreparable loss in case any injunction is granted in favour of the plaintiff.
2.3 The trial Court after considering the averments made in the application filed by the plaintiff so also hearing the arguments of the parties had rejected the application filed under Order 39 Rule 1 and 2 of the CPC vide order dated 27.09.2022 mainly on the ground that the plaintiff failed to prove his possession over the land in question. The trial Court had also observed that the demarcation report as submitted by the defendant has never been assailed and as such, it is clear that the plaintiff was not found in possession over the land in question and under such circumstances no prima facie case is made out in his favour.
2.4 Against the order dated 27.09.2022, an appeal was preferred by the plaintiff before the District Judge mainly on the grounds that the trial 4 Court failed to appreciate the facts in proper manner and also not considered the relevant documents while rejecting the application of injunction filed by him. The Appellate Court vide impugned order dated 10.12.2022 (Annexure-P/8) after considering the submissions made by the parties had arrived at a conclusion that the Sub Divisional Officer in its order dated 11.01.2022 had observed that in the revenue records, the name of the plaintiff was wrongly recorded in respect of land of Khasra No.47/1 area measuring 2.7300 hectares and, therefore, his name was deleted and name of Tejilal Yadav, defendant No.1(respondent No.2) got recorded. Further, the Revenue Inspector in its demarcation report dated 09.05.2022 had also found that defendant No.1 namely Tejilal Yadav is in possession of the land and as such, his possession cannot be considered to be an unauthorized possession and it has to be protected. Although, the Appellate Court had found that several disputed questions and serious dispute in respect of ownership of land are involved in the case and, therefore, according to it where disputed legal questions and factual aspects are involved, the prima facie case can be said to be in favour of the plaintiff. It was also observed by the Appellate Court that as regards to the title and possession are concerned, since dispute in repect of entries made in the revenue records is also involved, therefore, prima facie case is in favour of the plaintiff. The Appellate Court had further found that so far as balance of convenience is concerned, prima facie case is found in favour of the plaintiff and during pendency of suit, if the land is sold and ownership is transferred, then the same would create complication and there is every possibility of multiplicity of litigation and as such, the Appellate Court modifying the order of trial Court had restrained the petitioner and other defendants from alienating the suit property and creating any third party right during the pendency of suit. Hence, this petition.
53. The impugned order dated 10.12.2022 (Annexure-P/8) has been assailed in this petition mainly on the ground that when both the Courts have found that the petitioner/defendant No.2 is in possession of the land, then granting injunction restraining the petitioner and other respondents from creating any third party right is not proper.
4. Learned counsel for the petitioner has submitted that the suit for declaration that too without claiming any possession under such a circumstance is not maintainable and as such, observation that the prima facie case is in favour of the plaintiff is contrary to law and, therefore, it is claimed by learned counsel for the petitioner that the impugned order passed by the Appellate Court is liable to be set aside. In support of his contention, learned counsel for the petitioner has placed reliance upon several judgments of Supreme Court and also of this Court viz. (1973) 2 SCC 60 [Ram Saran and another Vs. Smt. Ganga Devi], (1996) 6 SCC 223 [Sawarni (Smt) Vs. Inder Kaur (Smt) and others], (2019) 10 SCC 259 [Prahlad Pradhan and others Vs. Sonu Kumhar and others], (2015) 5 SCC 725 [Municipal Corporation, Gwalior Vs. Puran Singh alias Puran Chand and others], (2004) 12 SCC 58 [Suman Verma Vs. Union of India and others], (2019) 3 SCC 191 [Bhima Bai Mahadeo Kambekar (dead) through legal representative Vs. Arthur Import and Export Company and others] and also 2012 (1) MPLJ 114 [Gangadhar Vs. Bhanwaribai].
5. On the other hand, learned Senior Counsel for respondent No.1/plaintiff has relied upon the reply filed by them and submitted that finding in respect of possession given by both the Courts below is perverse for the reason that the petitioner and other respondents who had purchased the property from defendant No.1(respondent No.2 herein) by a registered sale-deed which is subject matter of civil suit, have also moved an 6 application under Section 250 of the M.P. Land Revenue Code, 1959 (in short the 'Code, 1959') claiming possession of the land purchased by them by a registered sale-deed from defendant No.1(respondent No.2). He has also filed the documents with regard to proceeding initiated by the petitioner and other respondents under Section 250 of the Code, 1959 so as to substantiate that the petitioner and other respondents are still not in possession of the land in question. He has further submitted that from the documents of revenue records, it is clear that in respect of land situates at Khasra No.47, the name of respondent No.2 and his predecessors were not recorded as the owner of the land and there is no document to show as to how the name of respondent No.2 came in the revenue records in respect of land which is part of Khasra No.47. He has submitted that the land belonging to Khasra No.47 is shown to have been recorded in the name of four-fathers of respondent No.1 since 1960-61 till 1975-76 and further, the grand-father of respondent No.1 was also shown to be the owner of land as he was in possession of the same. In 1991, in the proceeding i.e. misil bandobast, Khasra No.47 whose earlier khasra number was Khasra No.17, was again given a new number i.e. Khasra No.82 and total area of 11.44 hectares was recorded in the names of Ramvilash and Durga Prasad Upadhyay (plaintiff). According to him, the names of respondent No.2 and his four-fathers were never shown in respect of land of Khasra No.47 and, therefore, he has submitted that the claim of respondent No.2 is absolutely misconceived as under the garb of erroneous order of revenue authorities mutating the name of respondent No.2 against the land of Khasra No.47/1, he executed the sale-deed in favour of petitioner and other respondents. He has further submitted that the order of revenue authorities incorrectly recording the name of respondent No.2 in the revenue records is also under challenge in connected writ petition i.e. W.P. No.14320 of 2023.
7According to him, under such a circumstance, the order passed by the Appellate Court granting injunction and restraining the petitioner and other respondents from creating any third party right, is just and proper and the same does not call for any interference.
6. I have heard the rival submissions advanced by learned counsel for the parties and perused the record.
7. As contended by learned counsel for the petitioner, the plaintiff has no prima facie case in his favour for the reason that the suit filed by him is not maintainable as per the provision of Section 34 of the Specific Relief Act because the suit for declaration and permanent injunction was filed without claiming possession over the land whereas both the Courts below in their finding has observed that the plaintiff is not in possession of the land in dispute. So far as the cases on which reliance has been placed by the learned counsel for the petitioner is concerned, in those cases, it has been observed by the Court that suit for declaration simpliciter that too without claiming possession over the land is not maintainable. In those cases, the plaintiff therein had neither claimed that the land is in his possession nor claimed the possession, therefore, it has been held by the Court that the suit is not maintainable, but here in this case, from paragraph-1 of the plaint, it is clear that there is a specific pleading that the plaintiff is in possession of the suit land and cultivating the same since long. It is specifically averred in the plaint that the defendants were never in possession of the suit land nor even their predecessors were in possession of the land. At the same time, by filing documents, it has been pointed by learned counsel for respondent No.1/plaintiff that the defendants were not in possession of the land and as such, they have initiated the proceeding under Section 250 of the Code, 1959, seeking possession of the suit land which clearly reveals that the defendants are out 8 of possession and land in question is in possession of the plaintiff. Under such circumstances, when the plaintiff himself is claiming that he possess the suit land, then the suit for declaration and permanent injunction would be maintainable and as such, the submission advanced by learned counsel for the petitioner saying that prima facie case is not in favour of the plaintiff and suit is not maintainable, has no substance.
8. The Supreme Court in a case reported in (2008) 4 SCC 594 [Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs. and others], considering the aspect as to under what circumstances, the suit for declaration and permanent injunction that too without claiming consequential relief of possession is maintainable, has observed as under:-
'13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.' Under such circumstance, when the plaintiff is claiming himself to be in possession of land and seeking declaration as his title is in doubt and he is 9 under threat of dispossession, the suit filed by him for declaration and permanent injunction can be said to be maintainable.
9. Similarly, the Supreme Court in a case reported in AIR 1961 SC 808 [C. Mohammad Yunus Vs. Syed Unnissa and others] has observed as under:-
'6. In our view, the suit as framed was maintainable. The management of the institution is vested in the trustees. The four families, it is true, are by tradition entitled to perform and officiate at certain ceremonies and also to share in the income. A suit for declaration with a consequential relief for injunction, is not a suit for declaration simpliciter : it is a suit for declaration with further relief. Whether the further relief claimed in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. In Kunj Behari Prasadji Purshottam Prasadji v. Keshavlal Hiralal [ILR (1904) 28 Bom 567] it was held that Section 42 of the Specific Relief Act does not empower the court to dismiss a suit for a declaration and injunction and that an injunction is a further relief within the meaning of Section 42 of the Specific Relief Act. In that case, the plaintiff had claimed that a certain will was null and void and that being a close relative of the last holder of a gadi, he was entitled to be the Acharya in the place of that last holder and for an injunction restraining the defendants from offering any obstruction to his occupation of the gadi. It was held that such a suit was maintainable. ' In view of the aforesaid, the observation made by the Appellate Court saying that prima facie case is in favour of the plaintiff cannot be said to be perverse.
10. Though learned counsel for the petitioner has argued that since the plaintiff failed to produce any document of his title and only relied upon the revenue entries showing that he is a recorded bhumiswami since long and, therefore, under such circumstances, the plaintiff's title over the land in question is not clear as compared to the petitioner because he is holding a registered sale-deed which is a document of title and as such, prima facie case as well as balance of convenience is in his favour and under the existing circumstances, if injunction is granted by the Appellate Court restraining the petitioner and other respondents from creating any third 10 party right over the land in question, then that would cause loss to the petitioner more than that of plaintiff/respondent No.1, but I am not satisfied with the said contention for the reason that it was a suit for declaration and since the sale-deed which has been executed in favour of the petitioner sought to be quashed declaring the same as null and void as the person who had executed the sale-deed, according to the plaintiff had no right to execute the same because the vendor of the petitioner had no title over the suit land and since no document showing title of vendor of the petitioner except the revenue entries was made available before the Court, therefore, under the existing circumstances, in my opinion, the order passed by the Appellate Court restraining the petitioner and other respondents from creating any third party right over the land in question to avoid any multiplicity of litigation or further complication cannot be said to be improper and illegal.
11. As a result, the petition fails and is hereby dismissed.
12. However, looking to the dispute involved in the case, the trial Court is directed to decide the civil suit expeditiously, preferably within a further period of six months from the date of receipt of copy of this order.
(SANJAY DWIVEDI) JUDGE dm DEVAS HISH Digitally signed by DEVASHISH MISHRA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, 2.5.4.20=db02acf8752ec7d40d9c7b27069 98aa1774d10503fedd8b615ae6aa42b0742 MISHR c1, postalCode=482001, st=Madhya Pradesh, serialNumber=BEDBFB3F19D3D59DD8321 BCADFBB1022C2BA335355DDF542C665C4 209BF8F691, cn=DEVASHISH MISHRA Date: 2024.07.10 10:57:23 +05'30' A