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2020 Supreme(MP) 956
IN THE HIGH COURT OF MADHYA PRADESH
S.C. Sharma, J.
Nilofar (Smt.) v. State of M.P. & Others
Miscellaneous Appeal No.2389 of 2020 (Indore) ; against the order dated 31.8.2020 passed by the trial Court; Decided on 23.11.2020.
Vijay Kumar Assudani for appellant ; Pushyamitra Bhargava, Additional
Advocate General for respondents/ State.
Headnote:
flfoy izfØ;k lafgrk] 1908 && vk-39 fu- 1 rFkk 2 && O;kns'k dc iznku ugha fd;k tk ldrk && jkT; ljdkj laifÙk dh gd /kkjd && bl ckjs esa dksbZ vkns'k vfHkys[k ij ugha yk;k x;k fd izkbosV dks gd fdl izdkj varfjr gqvk && jkT; dk dCtk && oknh O;kns'k iznku fd, tkus ds fy, izFke n`"V~;k ekeyk fl) djus esa vlQy && fopkj U;k;ky; }kjk vkosnu [kkfjt fd;k tkuk U;k;ksfpr Fkk && gLr{ksi visf{kr ugha && vihy [kkfjtA ¼2010½2 ,l lh lh 142 rFkk ¼2013½9 ,l lh lh 319 vuqlfjrA fjV ;kfpdk Ø- 623@2020( fu.khZr fnukad 6-9-2020 fufnZ"VA ¼iSjk 22 ls 25
Civil P.C., 1908 -- O.39 Rr. 1 and 2 -- injunction when cannot be granted -- State Government title holder of property -- no order brought on record as to how title transferred to private individuals -- State in possession -- plaintiff failed to make out prima facie case for grant injuction -- trial Court was justified in rejecting application -- no interference called for -- appeal dismissed. (2012)2 SCC 142 and (2013)9 SCC 319 followed. W.P. No. 603/2000 decided on 6.9.2020 referred to. [ Paras 22 to 25
ORDERS
1. The appellant before this Court has filed this present appeal under order XLIII Rule 1(r) read with section 151 of the Code of Civil Procedure, 1908 being aggrieved by order dated 31.8.2020 by which the application preferred by the appellant / plaintiff for grant of temporary injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 has been rejected.
2. The facts of the case reveal that the appellant before this Court, who is the plaintiff before the trial Court, has filed a civil suit stating that she is the title holder and is in possession of the suit land bearing Survey No.3667 area 0.0418 hectare, Ujjain. The appellant has also stated in the civil suit that she has purchased the suit property from one Sanstha vide registered sale deed dated 15.7.2004 and the Sanstha has purchased the suit property on 12.5.2004 from the predecessor in title namely Hakimuddin, Amitubai and Khatijabai.
3. The plaintiff has also stated in the plaint that the land was mutated in the name of plaintiff and Bhu Adhikar Pustika and Rin Pustika were issued by the Government. Earlier the names of Ibrahim and Mohammed Hussain, the predecessor in title were mutated in the record of the year 1970-71 to 1972-73 and one Mohammed Hussain relinquished his share. The land was later on mutated in the name of predecessor in title and it was sold to the plaintiff in the year 2004.
4. It was further stated that on 31.7.2020 plaintiff received a notice from Sub Divisional Officer (Revenue), Ujjain seeking consent of the plaintiff for laying of pipe line and in the notice it was stated that the disputed land was a Karkhana and the plaintiff without seeking the permission of the Competent Authority has started running the marriage garden.
5. The plaintiff has further stated that she came to know from the news paper that some order has been passed by the Sub Divisional Officer on 14.8.2020 and in those circumstances, the plaintiff has filed a suit for declaration of title and for grant of permanent injunction. Alongwith the suit, an application was also preferred under Order XXXIX rule 1 and 2 of the Code of Civil Procedure, 1908 and the same has been dismissed. The trial Court after hearing the State of Madhya Pradesh has dismissed the application preferred under Order XXXIX Rule 1 and 2 against which the present appeal has been filed.
6. Shri Assudani learned counsel appearing for the appellant in the matter has vehemently argued before this Court that the appellant is still in possession of the land on the basis of registered sale deed dated 15.7.2004 and therefore, the impugned order dated 31.8.2020 could not have been passed by the trial Court in the manner and method it has been done.
7. Another ground raised in the present appeal is that the sale deed executed in favour of the plaintiff is still in existence and until and unless the sale deed dated 15.7.2004 is set aside, the State Government cannot claim the title over the land in question. It has been further argued that even if it is assumed that the land was given for industrial purpose then also the provisions of section 181 of the M.P. Land Revenue Code, 1959 empowers the Collector to pass appropriate order in accordance with law.
8. Another ground has been taken by learned counsel stating that the State Government was required to file a civil suit or to initiate proceedings under the provisions of Madhya Pradesh Lok Parisar (Bedakhali) Adhiniyam, 1974 and by no stretch of imagination the impugned order could have been passed by the Court below merely because the State Government was in possession of the the suit property as stated before the trial Court.
9. Shri Assudani has argued before this Court that as per the provisions of section 115 of M. P. Land Revenue Code, 1959 in case there is an incorrect entry, no order could have been passed by the Sub Divisional Officer after five years without seeking sanction of the Collector and in the present case, the sanction was granted o
