Madhya Pradesh High Court
Inder Chaudhary vs Narendra on 11 October, 2022
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 11th OF OCTOBER, 2022
MISC. PETITION No. 4630 of 2022
BETWEEN:-
INDER CHAUDHARY S/O LATE NARAYAN
CHAUDHARY, AGED ABOUT 52 YEARS, VILLAGE
MAGARKHEDA, TEHSIL MALHARGANJ
INDORE DISTRICT INDORE (MADHYA
PRADESH)
.....PETITIONER
(SHRI BHAGWAN RAJ PANDEY, COUNSEL FOR THE PETITIONER
.
AND
1. NARENDRA S/O MEVALDAS KHUSHWANI E-18,
M.I.G. COLONY, INDORE (MADHYA PRADESH)
2. TEHSILDAR (REVENUE) INDORE DISTRICT
INDORE (MADHYA PRADESH)
3. DISTRICT COLLECTOR COLLECTORATE,
PRASHNIK SANKUL. INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI PRADYUMNA KIBE, PL FOR RESPONDENT NO.2 & 3.
This petition coming on for admission/orders this day, the court passed
the following:
ORDER
This is a petition filed under Article 227 of the Constitution of India being aggrieved by the order passed by civil court rejecting the application for grant of temporary injunction under Order XXXIX Rule 1 and 2 CPC. Against the said order, the petitioner preferred an appeal which has also been dismissed by the impugned order.
Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHALSigning time: 10/13/2022 3:16:31 PM 2 The petitioner/plaintiff has filed civil suit against the respondent-defendant for declaration and permanent injunction with regard to a dwelling house situated on the plot measuring 20x40 ft. situated on the government land bearing Survey No. 121-S Rakba 3.273 Hectare in between village Magarkheda and Jakhiya, tahsil Malhargar, Indore. It is also stated in the suit that petitioner/plaintiff is residing in the suit house since last 40 years and the suit house was constructed by his father. The plaintiff has claimed title on the basis of adverse possession. Civil court as well as appellate court both have considered his pleadings and held that petitioner/plaintiff has failed to prove prima facie case in his favour.
Counsel for the petitioner submits that possession of the plaintiff has been found by both the courts and therefore, his possession ought to have been protected by passing an order of injunction. He further submits that power of this Court under Article 227 of the Constitution of India is wider and therefore, his possession may be protected. In support of his submission, he has placed reliance on the judgment of apex Court in the case of Jai Singh and others Vs. Municipal Corporation Delhi, 2010(9) SCC 385 and also this Court in the case of Tilak Sahkari Maryadit Vs. Aqeel Ahmed, 2020 (1) MPLJ 332.
I have heard counsel for the petitioner and perused the order passed by both the courts.
After discussing the pleadings and the case of plaintiff, both the courts held that plaintiff has failed to prove prima facie case in his favour. He is claiming adverse possession on the government land which is reserved as Charnoi land. Further, the petitioner has claimed that he was granted oral permission by the Gram Panchayat. Against the said order, appeal was preferred. The appellate court has also taken into consideration that plaintiff has Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 10/13/2022 3:16:31 PM 3 not proved prima facie case in his favour that he is in continuous, uninterrupted and hostile possession of the land in question and in absence of same, the petitioner cannot claim title on the basis of adverse possession. In the case of Gopal Narayan Vs. State of Madhya Pradesh, 1979 MPLJ 284, it is held that if prima facie case is established, the other factors have not to be seen.
In the present case only because the plaintiff claims to be in possession of the suit land, the order of injunction cannot be passed unless the plaintiff establishes prima facie case in his favour and other factors also. In view of aforesaid, I do not find any illegality or perversity in the impugned order.
Even otherwise , it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Courts within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice. [See. Jai Singh and another vs. MCD, (2010) 9 SCC 385 and Shalini Shetty vs. Rajendra S. Patil, (2010) 8 SCC 329].
Further, a Co-ordinate Bench of this Court in the case of Ashutosh Dubey and another vs. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another, 2004 (2) MPHT 14 held that supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or the jurisdiction through available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 10/13/2022 3:16:31 PM 4 none is available to correct mere errors of fact or of law unless the following requirements are satisfied - (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law; and (ii) a grave injustice or gross failure of justice has occasioned thereby.
In view of the aforesaid enunciation of law, the instant petition is devoid of merit and is hereby dismissed.
(VIJAY KUMAR SHUKLA) JUDGE MK Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 10/13/2022 3:16:31 PM