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2015 Supreme(MP) 397
MADHYA PRADESH HIGH COURT AT JABALBUR BENCH
Vandana Kasrekar, J.
Dinesh and Ors. - Appellant
Versus
Vallabhdas - Respondent
W.P. No. 11609 of 2014
Decided On : 02-03-2015
For the Appellant : A.P. Singh
For the Respondents: J. Trivedi
The main legal point established in the judgment is the limited scope of interference under Article 227 of the Constitution of India in cases involving findings of fact.
Headnote:
Injunction - Disputed Pathway - Order 39, Rules 1 and 2 of Civil Procedure Code - 2005(2) MPLJ 348, AIR 1972 SC 2299 - The court upheld the lower courts' findings that the respondent was in possession of the disputed pathway and dismissed the petitioners' writ petition under Article 227 of the Constitution of India.
Fact of the Case:
The respondent filed a civil suit for declaration of a disputed pathway and sought permanent injunction against the petitioners. The trial court granted the injunction, which was upheld by the appellate court. The petitioners filed a writ petition challenging the order.
Finding of the Court:
The court found that the lower courts had correctly held that the respondent was in possession of the disputed pathway, and the petitioners could not be permitted to raise construction on the said pathway.
Issues: The main issue was whether the lower courts erred in granting injunction in favor of the respondent and whether the scope of interference under Article 227 of the Constitution of India applied.
Ratio Decidendi: The court held that the findings of the lower courts were findings of fact and could not be interfered with under Article 227. It cited the limited scope of interference under Article 227 and dismissed the writ petition.
Final Decision: The writ petition was dismissed without any order as to cost, and the trial court was directed to decide the suit expeditiously.
Vandana Kasrekar, J.
1. Shri A.P. Singh, learned counsel for the petitioners.
Shri A. Trivedi, learned counsel for the respondent.
Heard on the question of admission.
The petitioners have filed the present writ petition challenging the order dated 13-5-2014 (Annexure-P/1) passed by Additional District Judge, Pipariya, Distt. Hoshangabad in Miscellaneous Civil Appeal No. 08/2013. The brief facts of the case are that the respondent/plaintiff filed a civil suit for declaration of disputed pathway admeasuring area 15 x 60 feet at Southern end of his house and also sought relief of permanent injunction restraining the defendants/petitioner from carrying out construction over the disputed pathway. Along with the said suit, respondent/plaintiff has also filed an application under Order 39, Rules 1 and 2 of Civil Procedure Code.
2. The petitioners/defendants filed their reply.
3. Learned trial Court vide its order dated 20-8-2013 allowed the injunction application filed by the respondent/plaintiff. Being aggrieved by this order, the petitioners/defendants filed Miscellaneous Civil Appeal before the Court of learned Additional District Judge, Pipariya, Distt. Hoshangabad and the same was dismissed by the appellate Court by order dated 13-5-2014. Being aggrieved by this order, the petitioners have filed the present writ petition.
4. The contention of learned counsel for the petitioner is that learned Courts below did not consider the contentions raised by the petitioners in their reply. He further states that the petitioners have also filed an application for calling of the report of Commissioner and Tahsildar to ascertain the identity of pathway/passage at south end of plaintiff as per sale deed dated 6-1-1920 and sale deed dated 4-4-1951, however, learned Court below have not considered this application and dismissed the said application illegally. He further submits that the trial Court and the appellate Court have ignored the essential ingredients for grant of injunction. In support of his contention, learned counsel for the petitioners has placed reliance on the judgments passed by this Court in the case of Gurmeet Singh Sokhi v. Subhash Mallik and others, reported in 2005(2) MPLJ 348 and M. Kallappa Setty v. M.V. Lakshminarayana Rao, reported in AIR 1972 SC 2299. According to him, as the petitioners are in settled possession of the suit land and, therefore, the trial Court as well as the appellate Court have erred in law in granting injunction in favour of the respondent/plaintiff.
5. Learned counsel for the respondent supports the order passed by both the Courts below and states that both the Courts below have concurrently held that the plaintiff is in possession of the suit land and, therefore, the petitioners/defendants cannot be permitted to raise construction on the said land. Learned counsel for the respondent further submits that the scope of interference under Article 227 of the Constitution of India is very limited one and for the said purpose he relied upon the judgment passed by this Court in the case of Ashutosh Dubey and another v. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another, reported in 2004(3) MPLJ 213 : 2004(2) MPHT 14.
6. I have heard learned counsel for the parties and gone through the orders passed by the trial Court as well as appellate Court. After perusal of the record, I found that both the Courts below have concurrently held that the respondent/plaintiff is in possession of the disputed pathway and, therefore, the petitioners/defendants cannot be permitted to raise construction on the said pathway. The findings recorded by both the Courts below are the findings of facts which cannot be interfered by exercising the powers under Article 227 of the Constitution of India.
7. This Court in the case of Ashutosh Dubey and another (supra) in para-6 has held as under:
"6. So far as the decision of the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai and Single Bench judgment in Mangilal v.
