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IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)
A.K. Shrivastava, J.
Harish chandra
Vs.
P.K. Dwivedi and another
Misc. Appeal No. 1899 of 2002
Decided On: 14.03.2007
temporary injunction - Civil Suit - Code of Civil Procedure 1908, Order XXXIX, Rules 1 and 2 - The court discussed the provisions of Order VII, Rule 3 of the Code of Civil Procedure and the requirement for a description of the property sufficient to identify it. The court also referred to the case of Raja Bai (Manila) v. Dropadi Bai, 1995(1) MPWN 19, which emphasized the need for sufficient description to identify the disputed property. The court found that the plaintiff had provided sufficient description in the plaint to identify the property and held that the trial court's finding of insufficient material to ascertain the location of the disputed plot was contrary to the material placed on record.
Fact of the Case:
The plaintiff filed a suit for declaration and permanent injunction in respect to a plot of land, seeking a declaration of ownership and a decree for permanent prohibitory injunction against the defendants. The plaintiff also filed an application for temporary injunction to restrain the defendants from interfering with the possession of the suit property.
Finding of the Court:
The court found that the plaintiff had provided sufficient description in the plaint to identify the property and held that the trial court's finding of insufficient material to ascertain the location of the disputed plot was contrary to the material placed on record. The court also noted that there was a prima facie case in favor of the plaintiff, prima facie possession of the plaintiff on the suit property, and that the balance of convenience was in the plaintiff's favor.
Issues: The main issue was whether the plaintiff had provided sufficient description in the plaint to identify the property and whether the trial court's rejection of the application for temporary injunction was justified.
Ratio Decidendi: The court held that the plaintiff had provided sufficient description in the plaint to identify the property, and the trial court's finding of insufficient material to ascertain the location of the disputed plot was contrary to the material placed on record. The court also emphasized the need for sufficient description to identify the disputed property, as established in the case of Raja Bai (Manila) v. Dropadi Bai, 1995(1) MPWN 19.
Final Decision: The appeal was allowed, the impugned order passed by the trial court was set aside, and the application for issuance of temporary injunction filed by the appellant in the trial court was allowed. The defendants were restrained from interfering with the possession of the plaintiff over the suit property till the disposal of the suit. The appellant was also entitled to the cost of the appeal.
A.K. Shrivastava, J.
1. Feeling aggrieved by the impugned order dated 13-8-2002 passed by 10th Additional District Judge, Bhopal in Civil Suit No. 84-A/2002, whereby the application for issuance of temporary injunction filed by the plaintiff has been rejected, this appeal has been preferred by plaintiff under Order XLIII, Rule l(r) of the Code of Civil Procedure, 1908.
2. A suit for declaration and permanent injunction in respect to Plot No. 3, situated in Khasra No. 255 of village Narela Shankri, P.H. No. 19, Tahsil Huzur, District Bhopal has been filed by the plaintiff praying therein a declaration that he is owner of the suit land. Further a decree for permanent prohibitory injunction is sought against the defendants and in favour of plaintiff thereby restraining the defendants from interfering with the physical possession as well as in construction activities of the plaintiff over the suit plot either himself or through his associate, agent, employees etc.
3. During the pendency of the suit, an application for issuance of temporary injunction under Order XXXIX, Rules 1 and 2, Code of Civil Procedure has also been filed by the plaintiff praying therein that till disposal of the suit defendants be restrained from interfering with the possession of plaintiff and from dismantling the fencing work carried out by the plaintiff over the suit plot.
4. On bare perusal of the plaint as well as averments made in the application for issuance-'-of temporary injunction it is gathered that plaintiff bought the suit plot vide'Vegistered sale-deed dated 30th August, 1974 from Pribhdas son of Adumal-for a consideration of Rs. 300/- and the physical possession was also delivered to the vendee/plaintiff. However, defendants are trying to dispossess the plaintiff from the suit plot and hence relief of temporary injunction has been sought.
5. Plaintiff in support of his application filed his own affidavit and that of L.D. Dalwe and Shawar Siddiqui in order to substantiate his contention that he is in possession of the suit property. A certified copy of the registered sale-deed dated 30-8-1974 executed in favour of plaintiff has also been filed to show that on the disputed plot plaintiff is having physical possession as well as he is owner of the said plot.
6. The application for temporary injunction filed by the plaintiff has been opposed by the respondents/defendants by filing a reply. The main contention in the reply is that which specific portion the plaintiff is possessing there is nothing on record and since necessary description in regard to the identity of suit property as envisaged under Order v. II, Rule 3, Code of Civil Procedure has not been givenby the plaintiff and since the suit property cannot be ascertained, prayer to grant temporary injunction cannot be allowed.
7. Learned trial Judge by the impugned order has rejected the application mainly on the ground that the plaintiff has failed to specify the suit plot. According to the learned trial Court Khasra No. 255 is a big piece of land and in this khasra where the plaintiffs suit plot is situated, there is no sufficient material on record in that regard and, therefore, plaintiff is not having prima facie case and since he is not having prima facie case, it cannot be said that he is in possession of the suit property and balance of convenience is also in his favour. In this manner, trial Court has rejected the application.
8. It has been contended by learned counsel for the appellant that the impugned order passed by trial Court is not in accordance with law as there is sufficient description I n regard to the identity of the suit property. In this regard learned counsel for the appellant has invited my attention to the pleadings made in para 1 of the plaint. It has also been put-forth by him that factum of delivery of possession has been mentioned in the registered sale-deed executed in favour of plaintiff and hence prima facie there is overwhelming material in regard to hold that p
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