IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SUBODH ABHYANKAR st ON THE 21 OF FEBRUARY, 2024 MISC. PETITION No. 4524 of 2022 BETWEEN:-

SMT VANDANA JAISWAL W/O YOGENDRA JAISWAL, AGED ABOUT 51 YEARS, OCCUPATION: BUSINESS 3/01 OLD PALASIYA, INDORE (MADHYA PRADESH)

.....PETITIONER ( SHRI V. K. JAIN, SENIOR ADVOCATE WITH MS. VAISHALI JAIN, ADVOCATE)

AND

1. SMT REKHA KHATRI W/O SAMESH KHATRI, AGED ABOUT 45 YEARS, OCCUPATION: HOUSE HOLD 287- A, SHIVDHAM COLONY, INDORE (MADHYA PRADESH)

2. SAMESH KHATRI S/O CHARANJEET KHATRI, AGED ABOUT 55 YEARS, OCCUPATION: BUSINESS 287-A, SHIVDHAM COLONY, INDORE, M.P. (MADHYA PRADESH)

M.P. RAJYA THROUGH COLLECTOR UJJAIN

3.

(MADHYA PRADESH)

.....RESPONDENTS (BY SHRI R.S. CHHABRA, SENIOR ADVOCATE WITH SHRI ANUJ BHARGAVA, ADVOCATE FOR THE RESPONDENTS NO. 1 & 2 MS. HARSHLATA SONI, PANEL LAWYER FOR THE RESPONDENT NO.3/STATE)

-----------------------------------------------------------------------------------------------------

This application coming on for admission this day, the court passed the following:

Signature Not Verified

O R D E R

01] This Miscellaneous Petition has been filed by the petitioner under Article 227 of the Constitution of India, against the order dated 09.09.2022,passed in MCA No.6/2021 by VIII District Judge, District-Ujjain (M.P.) whereby, the order passed by the trial court under Order 39 Rule 1 & 2 read with Section 151 of the C.P.C.,1908 allowing the application, has been partly modified and it is directed that the petitioner shall be entitled to claim 25% of the godown situated at the disputed property.

02] In brief, the facts of the case are that a civil suit has been filed by the petitioner for specific performance of the contract dated 27.04.2013, in respect of the property bearing Survey No.52/2 ad- measuring 01 hectare situated at village Gondia, Tehsil & District- Ujjain. It was stipulated that out of the aforesaid land, 0.40 hectare is diverted land on which, a tin shed measuring 3252.78 sq.m. is also constructed, and out of the entire land, 25% is agreed to be sold to the petitioner. In the aforesaid suit, an application for temporary injunction was also filed, which has been allowed by the learned Judge of the trial court vide its order dated 19.1.2021, holding that the petitioner has made out a case for grant of temporary injunction and it is directed to the respondents No. 1 & 2/defendants not to alienate the property and change the nature of the property during to the pendency of the suit. The aforesaid order was challenged by the respondents/defendants before the District Appellate Court and the District Appellate Court vide its order dated 09.09.2022, has modified Signature Not Verified the order passed by the trial court holding that the respondents/defendants shall not alienate the property except 25% of the tin shed constructed on the said land.

03] Shri V.K. Jain, learned Senior counsel for the petitioner has submitted that the agreement was in respect of 25% of the entire land of one hectare, and thus, learned Judge of the District Appellate Court has apparently erred in holding that except 25% of the tin shed constructed on the said land, the defendants may be allowed to alienate the property. Thus, it is submitted that the impugned order liable to be set aside and order passed by the trial court deserves to be sustained.

04] Shri R.S. Chhabra, learned Senior counsel for the respondents No. 1 & 2 has vehemently opposed the prayer and it is submitted that no interference is made out as the learned Judge of the District Appellate Court has rightly found that the petitioner has not been able to make out any case for grant of temporary injuction in respect of the entire land. In support of his submission, that where the boundaries of the suit property are doubtful, the application for temporary injunction cannot be allowed, Shri Chhabra has relied upon the decision rendered by the Hon’ble Supreme Court in the case of Pawan Kumar Dutt and another vs. S