O R D E R

(Passed on 1st February, 2021)

Petitioner/defendant No.1 has filed the present petition being aggrieved by the order dated 18.8.2020 passed in Civil Suit No.9A/2020 by 2nd Civil Judge, Class-II, Sailana, District Ratlam whereby the application filed under Order VII Rule 11 of the C.P.C.

by the defendant ,has been rejected.

2.

According to the petitioner vide registered sale-deed dated

17.3.2016 Heeralal had sold the land bearing Survey No. 1136/1/2 admeasuring 0.200 Hect. to him. In the said sale-deed, it is mentioned that the way used by the seller would also be available to be used by the petitioner to approach his agricultural land. Respondent No.1/plaintiff also purchased the land bearing Survey No.1136/3/3 admeasuring 0.220 Hect. from Heeralal. According to the petitioner he has been given 15 ft. wide road to approach his land from the land of respondent No.1 i.e. land bearing Survey No.1136/3/1 by the Hera lal. Respondent No.1 applied for diversion of his land and vide order dated 30.5.2017 the said land was diverted and thereafter he has constructed the school in his land .

Petitioner has no grievance in respect of grant of building and development permission granted to respondent No.1, but after the construction of the school, respondent No.1 has started disputing into peaceful enjoyment of his easementary right and blocked the approach road i.e. 15fit wid road mentioned in the saledeed accordingly he preferred an application u/s. 131 of the M.P. Land Revenue Code (MPLRC) for the opening of the way to approach his agricultural field. In the year 2018 Panchnama was drawn in presence of the witnesses and it is observed that because of the construction of the boundary wall, the present petitioner is unable to reach his land with agricultural equipment. He filed an application for interim relief before the Tehsildar but the said application was rejected vide order dated 16.4.2018. Thereafter, he preferred an appeal before the Sub Divisional Officer who vide order dated 29.5.2019 directed the Tehsildar to decide the case on merits and now the case is proceeding before the Tehsildar.

Respondents No.1 and 2 have filed the suit for declaration and permanent injunction against the present petitioner to the effect that there is no road available in Survey No.1136/3/3 and the defendant i.e. present petitioner be restrained from interfering into their peaceful possession and be also restrained from damaging the property. In the said pending suit, the present petitioner has filed an application under Order 7 Rule 11 of C.P.C. seeking rejection of the plaint on the ground that the suit is not maintainable under the provisions of Section 41 of Specific Relief Act. The plaintiff filed the reply to the said application and prayed for its rejection. The petitioner also filed an application u/s. 151 of the C.P.C. for rejection of the plaint for want of jurisdiction on the ground that respondents No.1 and 2 i.e. the plaintiffs have filed another suit for declaration and permanent injunction against Heeralal which is pending as Civil Suit No.54A/2018 for the same relief. Vide impugned order dated 18.8.2020 learned Civil Judge has rejected both the applications, hence the present petition before this Court.

3. petitioner/defendant , has argued that the present suit filed by respondents No.1 and 2 is not maintainable because they are seeking the relief to the effect that the Tehsildar be restrained to proceed u/s. 131 of the MPLRC and such relief is barred u/s. 41 of the Specific Relief Act. For the same relief and cause of action, another suit has been filed against Heeralal and in which the present petitioner did file an application under Order 1 Rule 10 of the C.P.C., but the same has been rejected. The petitioner is an agriculturist and owner of land bearing Survey No.1136/1/2 and the application filed u/s. 131 of the MPLRC is maintainable before the Tehsildar. Therefore, no court can grant an injunction to proceed with the said applic