Madhya Pradesh High Court
Vinod Kumar Awasthi vs Pramod Awasthi on 20 April, 2023
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 20th OF APRIL, 2023
M. P. No.2709 of 2018
BETWEEN:-
VINOD KUMAR AWASTHI S/O LATE CHANDRA KISHORE
AWASTHI, AGED ABOUT 60 YEARS, OCCUPATION
BUSINMAN, R/O KOTHI BAZAR, NEAR KAMANI GATE,
BETUL, TEHSIL AND DISTRICT BETUL (MP)
.....PETITIONER/
PLAINTIFF
(BY SHRI SHIVENDRA PANDEY - ADVOCATE)
AND
1. PRAMOD AWASTHI S/O CHANDRA KISHORE
AWASTHI, AGED 64 YEARS, R/O NEAR KMANI
GATE, DISTRICT BETUL (MP)
2. SUBODH AWASTHI S/O LATE CHANDRA
KISHORE AWASTHI, AGED ABOUT 42 YEARS, R/O
WCL, PATHA KHEDA, DISTRICT BETUL (MP)
3. NAGENSH AWASTHI S/O LATE CHANDRA
KISHORE AWASTHI, AGED ABOUT 55 YEARS, R/O
NEAR KAMANI GATE, KOTHI BAZAR, DISTRICT
BETUL (MP)
4. RAJESH AWASTHI S/O LATE CHANDRA KISHORE
AWASTHI, AGED ABOUT 55 YEARS, R/O NEAR
KAMANI GATE, KOTHI BAZAR, DISTRICT BETUL
(MP)
5. BRAJESH AWASTHI S/O LATE CHANDRA
KISHORE AWASTHI, AGED ABOUT 50 YEARS, R/O
NEAR, KANI GATE, KOTHI BAZAR, TEHSIL AND
DISTRICT BETUL (MP)
6. SMT. ALKA W/O ARVIND MISHRA AGED ABOUT
50 YEARS, R/O A/703, EXOTICA, EAST SQUARE,
PLOT NO.1, MALL ROAD, AHINSH KHAND 2,
GAZIABAD (UP)
2
7. SMT. ANSHU SHUKLA W/O RAJENDRA SHUKLA,
AGED ABOUT 37 YEARS, R/O ASSISTANT
MANAGER, INDORAMA BUTTY, NAGPUR (M.H.).
8. STATE OF MP, THOUGH COLLECTOR BETUL
(MP)
9 PUSHPLATA W/O PANKAJ SABALE, AGED ABOUT
35 YEARS, R/O KOTHI BAZAR, DISTRICT BETUL
(MP)
10 LALIT S/O LATE MISHRILAL JASUJA, AGED
ABOUT 35 YEARS R/O MOHAN COLONY, CIVIL
LINE, DISTRICT BETUL (MP)
11 AMIT S/O RAMESH SABRE, AGED ABOUT 21
YEARS, R/O MOTI WARD BETUL, DISTRICT
BETUL (MP)
12 VIJAY S/O MANIKRAO MASKI, AGED ABOUT 35
YEARS, R/O SELGOON, TEHSIL AND DISTRICT
BETUL (MP).
.....RESPONDENTS
(RESPONDENT NO.4 BY SHRI ARUN KUMAR SHUKLA - ADVOCATE)
(RESPONDENT NOS.9 TO 11 BY SHRI PUSHPENDRA DUBEY - ADVOCATE)
.............................................................................................................................................................................
This petition coming on for admission this day, the court
passed the following:
ORDER
This misc. petition is filed under Article 227 of the Constitution of India, assailing the order dated 12.10.2017 (Annexure-P/4) passed by the Court of Second Additional District and Sessions Judge, Betul whereby the Court below rejected the appeal filed against the order of trail Court rejecting the application of the plaintiff/petitioner filed under Order 39 Rule 1 and 2 of the Code of Civil Procedure.
2. Shri Pandey, learned counsel for the petitioner submits that the plaintiff/petitioner in a pending suit filed for declaration and permanent 3 injunction in respect of the property which was subject matter of suit saying that during pendency of suit, the parties may be directed to maintain status quo in respect of the property in question. However, the Court below rejected the application holding that the partition between the parties had already been taken place long back and acting upon the said partition, all the parties are possessing their shares and enjoying the same. Learned counsel for the petitioner submits that factually that aspect is incorrect for the reason that the partition shown to have been taken place was on the basis of illegal partition which has no legal sanctity and, therefore, as per the declaration claimed, the suit property is required to be partitioned as per law granting proper share and possession of the same be also given to the plaintiff.
3. Shri Dubey, learned counsel for respondent Nos.9 to 11 submits that the petitioner has also included some other land for the purpose of claiming injunction whereas that land is neither the part of the suit land nor the subject matter of the suit and, therefore, according to him, injunction cannot be granted in respect of the land which is not part of the suit land. He also submits that the plaintiff himself has admitted that the land which is already partitioned and possession has been handed over to the plaintiff and other share-holders of the land, then injunction in respect of that land cannot be claimed. According to him, the Court below has rightly rejected the claim of the plaintiff/petitioner.
4. Shri Shukla, learned counsel for respondent No.4 having no say in the matter and even, he is not the contesting party.
5. I have heard the arguments advanced by learned counsel for the parties and perused the available documents.
6. After perusal of record and on going through the relief 4 claimed by the plaintiff in the plaint i.e. Annexure-P/1, the suit property described in paragraph-7 of the plaint situated at Mouza Banspani and Urdan over which the plaintiff/petitioner is claiming 1/8 th share and also seeking declaration to that regard. Looking to the relief claimed by the plaintiff in the plaint, I am inclined to grant interim relief in favour of the petitioner. Accordingly, the parties are directed to maintain status quo in respect of the land situated at Mouza Banspani and Urdan during pendency of the suit.
7. It is also clarified that this observation of the Court confining the land situated at Mouza Banspani and Urdan is only for considering the injunction claimed by the plaintiff/petitioner. However, if in the suit relief is claimed in respect of other land also and pleadings and evidence are there in that regard, then the Court below while passing final order may consider that aspect, but finding given in this order does not bind the Court confining the claim of the plaintiff only in respect of the land situated at Mouza Banspani and Urdan.
8. The suit has been filed in the year 2011 and now it is 2023, therefore, the Court below is directed to conclude the trial expeditiously, preferably within a period of nine months without giving any unnecessary adjournment to the parties.
9. With the aforesaid, the petition is partly allowed. The impugned order dated 12.10.2017 (Annexure-P/4) passed by Court below is set aside.
Pending applications, if any, stand disposed of.
(SANJAY DWIVEDI) JUDGE Devashish DEVASHISH MISHRA 2023.04.21 18:56:33 +05'30'