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2011 Supreme(MP) 98
2011 jk fu 177 2011 RN 177
¼mPp U;k;ky;½ (HIGH COURT)
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A.M. Naik and S.N. Aggarwal, JJ.
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Raju and others
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Awdesh and others
fjV ;kfpdk dz- 5242 lu~ 2010 ¼Xokfy;j½( vij ftyk U;k;k/kh‘k] fiNksj ftyk f‘koiqjh }kjk flfoy izdh.kZ vihy dzekad 3@2010 esa ikfjr vkns‘k ds fo:)( fu.khZr fnukad 1-2-2011A
Writ Petition No. 5242 of 2010 (Gwalior); against order of Additional District Judge, Pichhore, District Shivpuri, passed ill Civil Misc.Appeal No. 3/2010;
Decided on: 1.2.2011
Advocates Appeared:
N.K. Gupta for petitioners;
Rajiv Jain for respondents No.1 and 2;
Praveen Newaskar Dy. Govt. Advocate for respondent No.3.
Headnote:¼1½ flfoy izfdz;k lafgrk] 1908 & vk- 39 fu- 1 rFkk 2 & dqvk¡ dk fookn & Hkwfe ds ,d r`rh;ka‘k fgLlk dk fodz; & ,d losZ{k.k la[;kd esa dqvk¡ fLFkr & ,d r`rh;ka‘k fgLlk dk izHkkx fofufnZ"V ugha & dqvk¡ fodz; ls vyx ugha fd;k x;k & dqvk¡ dk ,d r`rh;ka‘k fodz; fd;k x;k ekuk tk,xk & fodzsrk ds i{k esa dqvk¡ ds fo"k; esa vLFkkbZ O;kns‘k iznku ugha fd;k tk ldrk & vihy U;k;ky; }kjk ,slk O;kns‘k lgh gh vikLr fd;k x;kA
;kphx.k ds fo}ku odhy }kjk eq[; izfrfojks/k ;g fd;k x;k gS fd fodz; foys[k fnukad 29-10-2005 }kjk izfroknhx.k dz- 1 rFkk 2 ds fookfnr dqvk¡ dk ,d r`rh;ka‘k lhek rd vf/kdkj] gd ;k fgr dk fodz; ugha fd;k x;k Fkk] fodz; foys[k esa mldk vfHkO;Dr :i ls mYys[k ugha fd;k gSA ¼iSjk 9½
vfHkfu/kkZfjr % fodz; foys[k esa xzke Hkksarh rglhy fiNksj ftyk f‘koiqjh esa fLFkr Hkwfe esa lekfo"V losZ{k.k la[;kad 1221] 1222] 1223] 1224] 1225 rFkk 1226 dk ,d r`rh;ka‘k dk :- 1]55]000@& izfrQy ds fy, oknhx.k }kjk izfroknhx.k dz- 1 rFkk 2 dks fodz; fd;k tkuk Li"Vr% mfYyf[kr gSA izfroknhx.k dz- 1 rFkk 2 dks fd, x, fodz; dk izHkkx fofufnZ"V ugha gSA ;g gksus ls] vLFkkbZ :i ls ;g fu.khZr fd;k tk ldrk gS fd oknhx.k }kjk izfroknhx.k dz- 1 rFkk 2 dks Hkwfe es vfoHkkftr ,d r`rh;ka‘k fgLlk dk fodz; fd;k x;k FkkA mi;ZqDr fodz; foys[k }kjk fd, x, fodz; dh fo"k; oLrq ls fookfnr dqvk¡ dks vyx ugha j[kk x;k FkkA tc fodz; foys[k esa of.kZr laifRr esa ,d r`rh;ka‘k dk fodz; fd;k x;k Fkk] Li"Vr% ;g losZ{k.k la[;kd 1224 dk ,d r`rh;ka‘k ftlesa fookfnr dqvk¡ fLFkr gS mls lfEefyr djsxkA ¼iSjk 10½
fo}ku fupys vihy U;k;ky; us voS/k :i ls dk;Z ugha fd;k gS vkSj vk{ksfir vkns‘k ikfjr djus esa dksbZ =qfV ugha dh gSA ¼iSjk 16½
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½& /kkjk 2 ¼1½¼V½ & Hkwfe & dk vFkZ & dqvk¡ lafgrk ds varxZr ifjHkkf"kr ugha & Hkwfe ds ,d r`rh;ka‘k fgLlk dk fodz; & ,d losZ{k.k la[;kad esa dqvk¡ fLFkr & dqvk¡ ds fo"k; esa vkj{k.k ugha fd;k x;k & Hkwfe esa dqvk¡ Hkh lfEefyr rFkk fodz; fd;k x;k gksuk ekuk tk,xkA ¼iSjk 13 rFkk 14½
¼3½ flfoy izfdz;k lafgrk] 1908 & /kkjk 89 & flapkbZ ds fy, dqvk¡ ls ikuh ysus dk fookn & i{kdkjksa ds le{k le>kSrk }kjk i{kdkjksa dks i`Fkd le; micaf/kr djrs gq, fu.khZr fd;k tkuk pkfg,A ¼iSjk 15½
(1) Civil P.C., 1908 -- O. 39 Rr. 1 and 2 -- dispute of well -- registered sale deed of one third share of land -- well situated in one survey number -- portion of one third share not specified -- well not excluded from sale-one third share of well will be treated sold -- temporary injunction in respect of well in favour of seller cannot be granted -- such injunction rightly set aside by appellate Court.
Main contention of learned counsel for the petitioners is that the right, title or interest to the extent of one-third in the disputed well was not sold to defendants No. 1 and 2 vide registered sale deed dated 29.10.2005, since the same was not so mentioned expressly in the sale deed. [Para 9
Held: It is clearly mentioned in the said sale deed that one-third of the land comprised in survey Nos. 1221, 1222, 1223, 1224, 1225 and 1226 situated in village Bhonti, Tahsil Pichhore, District Shivpuri was sold by the plaintiffs to defendants No.1 and 2 for a consideration of Rs. 1,55,000/-. Portion so sold to defendants No.1 and 2 has not been specified in the sale deed. This being so, it may be concluded for the time being that one-third undivided share in the land was sold to defendants No. 1 and 2 by the plaintiffs. The disputed well has not been excluded from the subject matter of the sale made vide the said registered sale deed. Since one-third share in the property described in the sale deed was sold, obviously, it would include one-third in survey No. 1224 wherein the disputed well is situated. [Para 10
The learned lower appellate Court has not acted illegally or has not committed any error in passing the impugned order. [Para 16
(2) Land Revenue Code, 1959 (M.P.) -- S. 2 (1) (k) -- land -- meaning of -- well not defined under Code -- one third share of land sold -- well situated in one survey number -- no reservation made in respect of well -- well also included in land and treated having been sold. [Paras 13 and 14
(3) Civil P.C., 1908 -- S. 89 -- dispute of taking water from well for irrigation -- should be decided by by-parte settlement providing separate timings for parties. [Para 15
A.M. Naik, J. -- 1. Short facts leading to the present writ petition are that the plaintiff-petitioners have instituted a suit for declaration of title and perpetual injunction, mainly with the averments that they were Bhumi-Swami and occupants of the land comprised in survey Nos. 1221, 1222, 1223, 1224, 1225 and 1226 in area 3.53 hectares, situated at village Bhonti, Tahsil Pichhore, District Shivpuri. Out of the aforesaid, plaintiffs sold undivided one-third i.e. 1.17 hectares, vide registered sale deed dated 29.10.2005 to defendants No. 1 and 2.
2. Case of the plaintiffs is that a well comprised in survey No. 1224 was not sold by them and no consideration in respect of the same was received by them. Partition was effected after the aforesaid sale between the plaintiffs and defendants-respondent No. 1 and 2 on 20.2.20 10. Defendants No. 1 and 2 asserted, one-third share in the said well. Thereafter, the suit giving rise to the present petition has been instituted with a prayer that it may be declared that the well situated in survey No. 1224 is owned and occupied by the plaintiffs alone. They further prayed that defendants No. 1 and 2 shall not cause obstruction in the plaintiff's title and possession over the disputed well.
3. Plaintiffs, simultaneously, submitted an application for temporary injunction for restraining defendants-respondents No. 1 and 2 from causing obstruction in the plaintiffs possession over the disputed well.
4. Defendants No. I and 2 submitted their reply to the application for temporary injunction. According to them, they have purchased one-third undivided share in the land comprised in the aforesaid survey numbers, which includes survey Nos. 1224. Thus, they have acquired title, as well as possession to the extent of one-third in the disputed well, by virtue of registered sale deed dated 29.10.2005.
5. Both the parties submitted their affidavits and supporting documents.
6. Learned trial Judge, vide order dated 21.5.2010, had allowed the application for temporary injunction and restrained defendants-respondent No. 1 and 2 from causing obstruction in the disputed well, situated in survey No. 1224. Defendants No. 1 and 2 submitted Civil Misc. Appeal No. 3/2010, which having been allowed vide the impugned order dated 23.7.2010, the present writ petition has been preferred by the plaintiffs under Article 227 of Constitution of India.
7. Learned counsel for the parties made their respective submissions.
8. It has been contended on behalf of the petitioners that the trial Court had rightly granted temporary injunction in their favour against defendant-respondent No. 1 and 2, which has been reversed by the learned Lower appellate Judge without proper consideration of evidence on record, as well as legal provisions. Learned counsel for the respondents supported the impugned order.
9. Main contention of learned counsel for the petitioners is that the right, title or interest to the extent of one-third in the disputed well was not sold to defendants No. 1 and 2 vide registered sale deed dated 29.10.2005, since the same was not so mentioned expressly in the sale deed.
10. We have gone through the copy of the sale deed, which is on record as annexure P-4. It is clearly mentioned in the said sale deed that one-third of the land comprised in survey Nos. 1221, 1222, 1223, 1224, 1225 and 1226 situated in village Bhonti, Tahsil Pichhore, District Shivpuri was sold by the plaintiffs to defendants No. 1 and 2 for a consideration of Rs. 1,55,000/-. Portion so sold to defendant No. 1 and 2 has not been specified in the sale deed. This being so, it may be concluded for the time being that one-third undivided share in the land was sold to defendant No.1 and 2 by the plaintiffs. The disputed well has not been excluded from the subject matter of the sale made vide the said registered sale deed. Since one-third share in the property described in the sale deed was sold, obviously, it would include one-third in survey No. 1224 wher
