A claimant must establish a prima facie case of possession to obtain a temporary injunction; mere possession without legal title is insufficient.

[Delivered on this 1st day of July, 2024]

The present petition under Article 227 of Constitution of India taking exception to the orders dated 10.2.2024 Annexure P- 1 passed by 4th District Judge, District Vidisha, whereby appeal preferred by the petitioner as plaintiff under Order 43 Rule 1 CPC has been dismissed and another impugned order dated 9.2.2021 passed by 2nd Civil Judge, Class-II, Vidisha, whereby application under Order 39 Rule 1 & 2 CPC by plaintiff was rejected, got affirmed.

2.It is the submission of learned counsel for petitioner that he filed a suit for declaration and permanent injunction on the basis of perfection of title by way of adverse possession. Land in question is surrounded by land belonging to other family members of plaintiff and field partition was undertaken. Land in question was given to the plaintiff as per settlement. Since then (1998), plaintiff is in possession of suit property. Defendant purchased the land by way of sale-deed from the erstwhile owner and said erstwhile owner has given the affidavit that it was not an executed sale-deed but it was a mortgage transaction reflected through sale-deed.

3.According to the learned counsel for petitioner, trial Court as well as First Appellate Court erred in passing the impugned order and rejected the claim of petitioner/plaintiff at least in respect of the prima facie case where possession is apparently of petitioner/plaintiff. Trial Court as well as Appellate Court erred in passing the impugned orders.

4.Learned counsel for petitioner also referred the Panchnama prepared by Patwari(Annexure P-7) in which Panches have opined about possession of petitioner/plaintiff over the suit property. On these grounds, he pressed for setting aside the impugned orders.

5.Counsel for the respondent No.2 opposed the prayer and supported the impugned order.

6.Heard the counsel for the parties and perused the documents appended thereto.

7.In the present case both the Courts below have dismissed the case regarding temporary injunction of petitioner/plaintiff on the ground that plaintiff is neither having prima facie case in respect of any right, title or interest as well as on the ground of possession. On the other hand, respondent/defendant-Chatri Bai found to be in possession of the suit property because in Bhooadhikar Pustika/Khasra documents of the year 2019-20, she has been referred as land owner. Under Section 117 of Madhya Pradesh Land Revenue Code 1959, entry in revenue record has presumptive value. Therefore, presumption of possession is in favour of owner of the property. Here sale-deed has also been filed by the respondent No.1/defendant No.1 to assert her claim as title holder of the suit property. She has registered sale deed in her favour. Therefore, presumption goes in favour of respondent No.1, rather than in favour of present petitioner.

8.So far as plea of possession is concerned, said fact has been denied by the defendant with vehemence. The photographs and affidavits filed by the plaintiff do not evoke enough confidence and credence to infer prima facie case regarding possession also.

9.When the petitioner/plaintiff does not have prima facie case then balance of convenience cannot be tilted merely on conjectures and surmises. In case of grant of any temporary injunction, irreparable injury may be inflicted over defendant No.1. Therefore, in the facts and circumstances of the case when two courts below have given finding of facts then this Court under the limited jurisdiction vested under Article 227 of the Constitution of India cannot take contrary view. (See.: Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil reported in (2010) 8 SCC

329) in which Apex Court has delineated the principle regarding scope of Article 227.

10.Resultantly, petition sans merit and is hereby dismissed.