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IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia, J.
Charanjeet Singh and others v. Indore Development Authority and others
Miscellaneous Appeal No. 492 of 2013 (Indore); against order dated 21.2.2013 passed by 10th Additional District Judge;
Decided on 4.5.2017.
Held : In view of the apex Court's judgment even if any easementary right was available which is yet to be established by the plaintiffs, have been seized the moment the notification under section 4 has been issued and thereafter the final award is passed. The suit property has been transferred to the IDA free from all encumbrance which has been sold to defendant No.3 by way of open auction. The resolution and recommendation written by the IDA which were written in favour of the defendant No.3 stand superseded and would not apply in case of plaintiffs. The entire land has been sold to the defendant No.3, therefore, there is no prima facie case in favour of the plaintiffs to use the said land for way to approach their land.
(2) Land Acquisition Act, 1894 -- Ss.4 and 16 -- temporary injunction -- land in question acquired under -- thereafter award passed in 1991 which was challenged in civil suit -- civil Court has no jurisdiction to interfere with award passed under -- if land acquired -- same would be free from all encumbrance.
Held : It is not disputed that the suit land has been acquired under the provisions of the Land Acquisition Act. The notification under section 4 of the Land Acquisition Act was published and thereafter the award was passed in the year 1991 which the plaintiffs have challenged in the civil suit. It is settled law that the civil Court has no jurisdiction to interfere with the award passed under the Land Acquisition Act. Section 16 of the Land Acquisition Act specifically provides that if the land is acquired same would be free from all encumbrance. (2001)8 SCC 104, followed.
(3) Transfer of Property Act, 1882 -- S.8 -- transfer of rights and interest in case of sale -- temporary injunction -- unless a different intention is expressed or necessarily implied -- transfer of property passes forthwith to transferee all interests -- which transferor is then capable of passing in property -- if property is a land -- then easements annexed thereto also passes to purchaser -- easementary rights are transferable.
Held : In entire plaint, the plaintiff has not stated that except this way they do not have any other way available to approach their land. They only pleaded that suit land is the only way from Ring Road. They must have other ways from the side road which they did not specifically pleaded in the plaint, therefore, the trial Court has rightly came to the conclusion that it is not a case of irreparable loss. I do not fin any merit in the appeal to interfere with the order of the trial Court, hence appeal is accordingly dismissed.
¼1½ flfoy izfØ;k lafgrk] 1908 && vk-43 fu-1 rFkk vk-39 fu-1 rFkk 2 && laifŸk varj.k vf/kfu;e] 1882 && /kkjk 8 && Hkwfe&vtZu vf/kfu;e] 1894 && /kkjk 4 rFkk 16 && vLFkk;h O;kns'k && mica/k ds v/khu vkosnu && fopkj.k U;k;ky; }kjk vLohd`r && vihy && lq[kkpkj lac/kha vf/kdkj varj.kh; gS && ijarq oknhx.k dks izFken`"V~;k ;g LFkkfir djuk pkfg, fd dfFkr vf/kdkj foØsrk dks miyC/k Fks && oknh us vius iwokZf/kdkfj;ksa dk bl laca/k esa dksbZ 'kiFk&i= izLrqr ugha fd;k fd os okn Hkwfe dk jkLrs dk vf/kdkj ds :i esa mi;ksx dj jgs Fks && okn Hkwfe mica/k ds v/khu igys gh vftZr dj yh xbZ rFkk vf/kfu.kZ; 1991 esa ikfjr fd;k x;k tks flfoy okn esa vk{ksfir fd;k x;k && fopkj.k U;k;ky; vf/kfu.kZ; esa gLr{ksi djus ds fy, dksbZ vf/kdkfjrk ugha j[krk && bankSj fodkl izzkf/kdj.k us okn laifŸk foØ; dj nh && oknhx.k ds i{k esa dfFkr Hkwfe dk viuh Hkwfe ij igqWpus ds jkLrs ds fy, mi;ksx djus gsrq izFken`"V;k ekeyk ugh && fopkj.k U;k;ky; Bhd&gh bl fu"d"kZ ij igqWpk fd ;g viwj.kh; {kfr dk ekeyk ugha && vihy [kkfjtA vfHkfu/kkZfjr % 'kh"kZ U;k;ky; ds fu.kZ; dks ns[krs gq,] ;fn dksbZ lq[kkpkj laca/kh vf/kdkj miyC/k Hkh Fkk ftls oknhx.k }kjk vc Hkh LFkkfir djuk gS /kkjk 4 ds v/khu tkjh dh xbZ vf/klwpuk ds le; vfHkxzg.k dj fy;k x;k rFkk rRi'pkr~ vafre vf/kfu.kZ; ikfjr fd;k x;kA okn laifŸk lHkh foYyxeksa ls Lora= bankSj fodkl izkf/kdj.k dks varfjr dj nh xbZ tks fd izfroknh Ø-3 dks [kqyh uhykeh }kjk foØ; dj nh xbZA vkb Mh , }kjk fy[kh xbZ izLrko rFkk fLkQkfj'k tks izfroknh Ø-3 ds fgr esa fy[kh xbZ vf/kØkar dh xbZ rFkk oknhx.k ds ekeys esa ykxw ugha gksxhA laaiw.kZ Hkwfe izfroknh Ø-3 dks foØ; dj nh xbZA blfy, oknhx.k ds i{k esa dfFkr Hkwfe dk mi;ksx viuh Hkwfe esa igqWp gsrq jkLrs ds fy, djus ds fy, izFken`"V~;k ekeyk ugha gSA ¼2½ Hkwfe vtZu vf/kfu;e] 1894 && /kkjk 4 rFkk 16 && vLFkk;h O;kns'k && iz'uxr Hkwfe mica/kks ds v/khu vftZr dh xbZ && rRi'pkr~ 1991 es vf/kfu.kZ; ikfjr fd;k x;k && tks flfoy okn esa vk{ksfir fd;k x;k && flfoy U;k;ky; mica/kks ds v/khu ikfjr fd, x, vf/kfu.kZ; esa gLr{ksi djus ds fy, vf/kdkfjrk ugha j[krk gS && ;fn Hkwfe vftZr dh xbZ && og lHkh foYyaxeksa ls Loar= gksxhA vfHkfu/kkZfjr % ;g fookfnr ugha gS fd okn Hkwfe] Hkwfe vtZu vf/kfu;e ds mica/kks ds v/khu vftZr dh xbZA Hkwfe vtZu vf/kfu;e dh /kkjk 4 ds v/khu vf/klwpuk izdkf'kr dh /kkjk 4 ds v/khu vf/klwpuk izdkf'kr dh xbZ Fkh rFkk rRi'pkr~ o"kZ 1991 esa vf/kfu.kZ; ikfjr fd;k x;k Fkk ftls oknhx.k us flfoy okn esa vk{ksfir fd;kA ;g lqLFkkfir fof/k gS fd flfoy U;k;ky; Hkwfe vtZu vf/kfu;e dh /kkjk 16 fo'ks"k :i ls mica/k djrh gS fd ;fn Hkwfe vftZr dh tkrh gS rks og lHkh foyaxeks ls Lora= gksxhA ¼2001½ 8 ,l lh lh 104 vuqlfjrA ¼3½ laifŸk varj.k vf/kfu;e] 1882 && /kkjk 8 && foØ; dh fLFkfr esa vf/kdkjksa rFkk fgrksa dk varj.k && vLFkk;h O;kns'k && tc rd fd fHkUu vk'k; ;k vko';d :i ls foof{kr O;Dr ugha fd;k tkrk gS && laifŸk dk varj.k varfjrh dks lHkh fgr vkxs gLrkarfjr djrk gS && rHkh og varj.kdŸkkZ laifŸk esa gLrkarj.k djus esa l{ke gksrk gS && ;fn laifŸk Hkwfe gS && rc layXu lq[kkf/kdkj Hkh [kjhnnkj dks gLrkarfjr gksrk gS && lq[kkf/kdkj varj.kh; gSA vfHkfu/kkZfjr % laiw.kZ okn esa oknh us ;g dFku ugha fd;k fd jkLrs ds vykok dksbZ vU; jkLrk mudh Hkwfe dh igqWp ds fy, muds ikl ugha gSA mUgksusa dsoy ;g vfHkopu fd;k fd fjxa jksM ls dsoy okn Hkwfe gh jkLrk gSA muds ikl cxy dh jksM ls vU; jkLrk gksuk pkfg, ftldk mUgksus fof'k"V :i ls okni= esa vfHkopu ugha fd;kA blfy, fopkj.k U;k;ky; Bhd gh bl fu"d"kZ ij vk;k fd ;g ekeyk viwj.kh; {kfr dk ugha gSA eS fopkj.k U;k;ky; ds vkns'k esa gLr{ksi djus ds fy, vihy esa dksbZ xq.k nks"k ugha ikrk gwWA blfy, vihy rnuqlkj [kkfjt dh tkrh gSA¼iSjk 14] 15 ,oa 18
1. Appellants/plaintiffs have filed the present appeal under Order 43 rule 1 of CPC against the order dated 21.2.2013 passed by the 10th Additional District Judge by which application under Order 39 rules 1 and 2 for temporary injunction has been rejected.
2. Facts of the case, in short, for disposal of this miscellaneous appeal are as under :
3. Plaintiffs have purchased a piece of agricultural land bearing Khasra No.89/1/4 and 91/1 (area 0.169 hectares and 0.234 hectares) respectively of Gram Chetawad, Tahsil Dewas by sale deed dated 21.01.2000. The boundaries of the land are described in the sale deed itself. According to the plaintiff, the predecessors were having 70 feet wide road (hereinafter referred as "suit land") from Ring Road to approach their land since last 32 years which they were using without any obstruction and after the sale deed, the said easementary right has been transferred to him. In the month of August' 2012 some officers of the IDA visited the spot.“Thereafter, plaintiffs read notice published by IDA in the newspaper dated 14.9.2012 by which plot No.2, Scheme No.94 has been reserved for educational purpose. NITs were invited for sale of the said land. The suit land which is being used by the plaintiff as way to their land is part of Plot No.2. Immediately the plaintiff filed the writ petition before this Court i.e. Writ Petition No.9110/2012 challenging the tender notice dated 14.9.2012. Vide order dated 25.9.2012 interim protection was granted to the plaintiffs. The respondents took an objection that writ petition seeking easementary right is not maintainable and said land has already been acquired in the year 1987 under the Land Acquisition Act and award to that effect has been passed on 30.3.1991. The respondent No.3 also intervene in the said writ petition as they are also owner of the adjacent land (Area 1.50 lac sq.ft) because they wanted to construct a 30 beds hospital on it. They have also claimed the right to passage through Plot No.2. Later on, the writ petition was withdrawn on 7.8.2012 with a liberty to file a civil suit. Thereafter, the respondent No.3 by way of open auction has purchased the Plot No.2 from the IDA for the construction of educational institution. The plaintiff filed the suit along with an application under Order 39 rules 1 and 2 seeking relief that the suit land is only passage available to reach teir land from Ring Road, therefore, the defendant be restrained to obstruct the said right of way. The plaintiffs have also challenged the award passed by the Land Acquisition Officer.
4. After notice defendants No.1 and 2 filed reply to the“application under Order 39 rules 1 and 2 stating that the entire land has been acquired in the year 1987 under the provisions of Land Acquisition Act and now vested with the IDA. The entire area has been developed by the IDA. The defendant No.3 also filed reply stating that they have purchased Plot No.2 from the IDA for construction of Educational Institute, therefore, the plaintiffs are not entitled for temporary injunction.
5. The learned Additional District Judge did not found prima facie case in favour of the plaintiffs and also held that they are not going to suffer irreparable loss if temporary injunction is not granted. The balance lies on the defendant, hence vide order dated 21.3.2012 the application for temporary injunction has been rejected. Hence, the present appeal before this Court.
6. Vide order dated 25.2.2013, notices were issued and by way of interim relief, it was directed that approach road of the land of the plaintiffs/appellants shall not be disturbed till the next date of hearing.
7. Shri Ajay Mishra, learned counsel for the appellants/plaintiffs submits that the plaintiffs purchased the land by way of registered sale deed from the erstwhile owner Bherulal and Suresh who were having the easementary right to approach their land from Ring Road through suit loand and same right has been passed on to the plaintiffs, theref
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