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2019 Supreme(MP) 621
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
S.A. DHARMADHIKARI, J.
Kamal Singh – Petitioner
Versus
Narayan J. Acharya and Others – Respondents
M.P. No. 3894 of 2019
Decided On : 16-08-2019
Advocate Appeared:
For the Petitioner: Shri Abhishek Singh Bhadoriya.
For the Respondent: Shri R.K. Soni.
The court emphasized the principles for granting interim injunction, including the need for a prima facie case, balance of convenience, and consideration of the parties' conduct.
Headnote:
Injunction - Civil Suit - Code of Civil Procedure - Order 39 Rule 1, 2 - Section 52 of the Transfer of Property Act - 2015 (2) MPLJ 698
Fact of the Case:
The petitioner filed a civil suit seeking declaration of title and permanent injunction for a disputed land. The trial court rejected the application for temporary injunction, which was affirmed by the lower appellate court. The petitioner claimed to be the owner in possession of the disputed land and sought temporary injunction to prevent dispossession by the respondents.
Finding of the Court:
The court found that the petitioner failed to prove possession of the disputed land and that the balance of convenience did not lie in favor of the petitioner. The court cited the principles for granting interim injunction and concluded that the trial court and the lower appellate court had correctly applied the law in denying the injunction.
Issues: The main issue was whether the petitioner was entitled to a temporary injunction based on possession of the disputed land and the balance of convenience.
Ratio Decidendi: The court applied the principles for granting interim injunction, including the existence of a prima facie case, balance of convenience, and irreparable injury. It emphasized that the conduct of the parties is also a relevant consideration for granting injunction.
Final Decision: The petition was dismissed at the admission stage, and the court held that there was no case for interference with the concurrent findings of facts leading to the non-grant of injunction.
JUDGMENT :
S.A. DHARMADHIKARI, J.
1. Heard on the question of admission and interim relief.
2. In this petition under Article 227 of the Constitution of India, petitioner has challenged the order dated 12.04.2019 (Annexure P-2) passed in Civil Suit No. 3A/2019 by First Civil Judge Class-2, Guna (M.P.) whereby application filed by the petitioner/plaintiff under Order 39 Rule 1 and 2 of the Code of Civil Procedure was rejected by the Trial Court. The order dated 15.05.2019 passed in Miscellaneous Civil Appeal No. 22/2019 is also called in question whereby the Lower Appellate Court in exercising power under Order 43 Rule 1 of the CPC has affirmed the order passed by the Trial Court.
3. Necessary facts for adjudication of this case are that petitioner/plaintiff instituted a civil suit for declaration of title and permanent injunction with respect to disputed land alongwith application under Order 39 Rule 1 and 2 of the CPC seeking temporary injunction in respect of the suit land i.e. situated at Survey No. 44 from 14 Bighas 13 Biswa and from Survey No. 45/1 Biswa Guna City Halka Chawani Tahsil District Guna (M.P.) (hereinafter referred to as the “disputed land”). The aforesaid disputed land was originally in the name of late Shri Raja Ganga Singh S/o Late Shri Raja Mahendra Singh which was later on given to father of the petitioner/plaintiff by executing sale deed dated 16.11.1958 and the possession was also handed over to the father of the petitioner/plaintiff and he did not cultivate the aforesaid land. On the aforesaid basis, plaintiff had become owner in possession of the disputed land. Respondents are trying to dispossess from the disputed land by threatening him. Under such circumstances, petitioner/plaintiff had no option but to file civil suit alongwith application under Order 39 Rule 1 and 2 of the CPC for temporary injunction. The Trial Court in its order dated 12.04.2019 had come to the conclusion that prima-facie plaintiff has not been able to prove that he is in possession of the disputed land. The possession can be proved after the evidence is recorded. So far as the question of alienation of the disputed land is concerned, plaintiff can very well apply under Section 52 of the Transfer Property Act. At this stage, since the petitioner/plaintiff does not appear to be in possession of the disputed land, there is no question of irreparable loss being caused to him.
4. Being aggrieved by the order dated 12.04.2019, plaintiff preferred an appeal under Order 43 Rule 1 of the CPC. The Lower Appellate Court vide order dated 15.05.2019 rejected the appeal on the ground that plaintiff has not been able to show that he is in possession of the disputed land. Accordingly, the Lower Appellate Court affirmed the order passed by the Trial Court. Learned counsel for the petitioner/plaintiff criticized the orders passed by the Lower Appellate Court, as well as, the trial Court on the ground that both the courts below have failed to consider the fact that petitioner/plaintiff is in possession of the disputed land for more than 55-60 years. The Trial Court did not consider the sale deed dated 16.11.1958 in its true perspective and there is contradiction in the Survey numbers and sale deed executed in the name of Mooli Devi is forged and concocted. Therefore, prima-facie case and balance of convenience lies in favor of the plaintiff. As such, injunction order ought to have been passed in favour of petitioner/plaintiff. Learned counsel for the petitioner/plaintiff contended that in the aforesaid circumstances temporary injunction may be granted.
5. On the other hand, Shri R.K. Soni, learned Government Advocate appeared on behalf of respondent No. 6 and supported the orders passed by the Courts below by taking this Court to various paragraphs of lower appellate Courts order. The Appellate Court as well as the Trial Court has held that question of possession can be decided only after recording of evidence, therefore, plaintiff is not entitled for
