Madhya Pradesh High Court
Anil vs Ramkunwar Bai on 27 August, 2018
~1~
HIGH COURT OF MADHYA PRADESH
MA No. 2074/2018
Indore, Dated: 27/8/2018
Shri Sunil Jain learned senior counsel with Shri Ms. Parika
Singh learned counsel for appellants.
Shri Vinay Gandhi learned counsel for respondent no.1.
Heard finally with consent.
By this Misc. Appeal under Order 43 Rule 1(r) of CPC plaintiff has challenged the order of trial court dated 26/3/2018 granting temporary injunction in favour of respondent o.1.
The appellant has filed the suit for specific performance of contract wherein respondent no.1 has filed the counter claim seeking permanent injunction.
Respondent no.1 had filed an application for temporary injunction with the plea that she was the registered owner in possession of the suit land and appellant had tried to interfere in her possession, therefore, by way of temporary injunction the prayer was made for restraining the appellant from interfering in her possession.
The application was opposed by appellant taking the plea that no ground for temporary injunction is made out.
Trial court by the impugned order considering the respective material produced by both the parties has found that respondent no. 1 is in possession of the suit property therefore, recorded a finding that respondent no. 1 had prima facie case, balance of convenience was in her favour and if the temporary injunction is not granted the respondent no. 1 will suffer irreparable injury. The trial court has allowed the application for ~2~ temporary injunction and has restrained the appellant from interfering in possession of respondent no. 1.
Learned counsel for appellant submits that trial court has committed an error in granting temporary injunction in favour of respondent no. 1 without appreciating that in the agreement to sale dated 17/5/2005 there is endorsement that possession was delivered at the time of execution of sale agreement.
As against this learned counsel for respondent no. 1 submits that sale agreement itself is forged and in the main body of the agreement it is mentioned that possession will be delivered at the time of executing the sale deed. He has further referred to various documents as well as pleadings in support of the plea that respondent no. 1 is in possession of suit property.
Having heard the learned counsel for the parties and on perusal of the record it is noticed that trial court while granting temporary injunction has duly taken into account all the material produced by both the parties. Since both the parties had produced the affidavits in support of their claim, therefore, the trial court has mainly decided the application on the basis of documentary evidence. Trial court has taken note of the revenue record and has found that suit land is recorded in the name of respondent no. 1. Trial court has also considered the agreement dated 17/5/05 and has prima facie found that sentence relating to delivery of possession was later on inserted whereas at other place the sale agreement mentioned that possession will be delivered at the time of execution of sale deed. Trial court has also noted that in the receipt date 20 th July 2005 there is no mention about the delivery of possession and has considered ~3~ the legal position that suit land is an open piece of land therefore, possession follows title. It has further been found that though respondent no. 1 is in possession of the suit property but appellant is trying to disturb her possession.
The record reflects that respondent no. 1 is owner of the suit land, therefore, the view of trial court that possession follows title is duly supported by the judgments of this court in the matter of Amritlal Vs. Kashiprasad Bilaiya and another reported in 1979 JLJ 41 and Nagar Palika Bina Vs. Shrinandlal reported in AIR 1961 MP 212.
That apart the impugned order passed by the trial court reveals that trial court has rightly exercised the discretion while granting temporary injunction to the respondent no. 1 and conclusions arrived at by the trial court are on the proper appreciation of material produced by both the parties.
The scope of interference in such matters is limited. Supreme court in the matter of Wander Ltd. And another Vs. Antox India P. Ltd. Reported in 1990 (Supp) SCC 727 has held that the order granting temporary injunction is discretionary in nature and an appeal against exercise of discretion is an appeal on principle where the appellate court is not to reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. Similarly in the matter of Skyline Education Institute (Pvt.) Ltd. Vs.S.L. Vaswani and other reported in AIR 2010 SC 3221 it has been held that if such exercise of discretion is based upon objective consideration of ~4~ the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on de-novo consideration of the matter it is possible for the appellate court to form a different opinion on the issue of prima facie case, balance of convenience, irreparable injury and equity.
Same is the view expressed by Supreme court in the subsequent judgment in the matter of Mohd. Mehtab Khan and others Vs. Khushunma Ibrahim and others reported in AIR 2013 SC 1099.
Having regard to the aforesaid factual and legal position, I do not find any merit in the present appeal which is accordingly dismissed.
C.C. As per rules.
(Prakash Shrivastava) Judge BDJ Bhuneshwar Datt 2018.08.29 18:31:52 -07'00'