IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE GAJENDRA SINGH th ON THE 14 OF NOVEMBER, 2024 MISC. PETITION No. 1982 of 2021 LALIT SINGH SISODIYA Versus SMT. NEELAM Appearance:

Shri Sumeet Samvatsar, learned counsel for the petitioner.

Shri Manu Maheshwari, learned counsel for the respondent [R-1].

ORDER This miscellaneous petition under Article 227 of the Constitution of India is preferred being aggrieved by the order dated 12.02.2021 (Annexure P/6) passed in miscellaneous civil appeal no.1200035/2016 by 4th Additional District Judge, Indore arising out of order dated 06.09.2016 in regular civil suit no.132A/2016 by 4th Civil Judge, Class-II, Indore.

2. Facts in brief are that petitioner/plaintiff filed a civil suit through plaint (Annexure P/1) for permanent injunction regarding plot no.2 (present no.3), Omkar Marg, Gandhi Nagar, Indore comprising area 1800 sq. ft. The boundary of which are mentioned in para-3 of the plaint on the ground that he purchased the suit plot on 12.02.2013 from Pushpabai and defendant/respondent is interfering in his possession on the strength of agreement dated 28.10.2006 executed by Kamlabai through power of attorney Rajmal Jain whereas Kamlabai being issueless have given the said Signature Not Verified Signed by: HARIKUMAR plot to the son of her brother-in-law viz. Narendra Kumar Jain. After the death of Narendra Jain, wife Pushpabai has executed the sale deed in his favour. The plaintiff also filed an application (Annexure P/2) for temporary injunction and defendant/respondent filed the written statement (Annexure P/3) and also filed reply of temporary injunction application vide Annexure P/4.

3. Trial court allowed the temporary injunction application of the plaintiff/petitioner vide order dated 06.09.2016 (Annexure P/5) and both the parties were directed not to alienate the disputed property till the disposal of the case. The said order was challenged before the first appellate court and vide order dated 12.02.2021 (Annexure P/6) the order of the trial court was reversed and the appeal was allowed recording the finding that necessary ingredients of prima facie case, balance of convenience and irreparable injury is not proved in favour of the plaintiff/petitioner.

4. This petition is being preferred on the ground that first appellate court failed to appreciate that while deciding the application under under Order 39 Rule 1 & 2 CPC only prima facie case has to be established and this onus was discharged by the petitioner based on the pleadings and documents produced before the trial court. The first appellate court based its order on pretext and surmises to derive the factum of possession which was contrary to the pleadings advanced by the parties. The respondent's case of claiming title over the suit property is hollow as the so called sale is null and void considering the power of attorney executor expired prior to date of agreement. Learned appellate court erred in holding possession of Signature Not Verified Signed by: HARIKUMAR respondent over the suit property on the basis of demolition notice issued by Indore Municipal Corporation to the respondent for illegal construction. The appellate court failed to appreciate that injunction granted by the trial court was way back in the year 2016 and in the meantime the proceedings before the trial court continued till the recording of evidence and therefore, the respondent did not face any irreparable injury on account of order of trial court granting injunction. The temporary injunction for not creating third party right is essential considering both the parties were claiming ownership.

5. Heard.

6. Counsel for the respondent/defendant opposed the miscellaneous petition referring to Devi Prasad vs. Babulal - 1991 MPLJ 480 and Kashi Math Samsthan and another vs. Shrimad Sudhindra Thirtha Swamy and another - (2010) 1 SCC 689.

7. Record perused.

8. Appellant/petitioner has referred to Omprakash Agrawal vs.

Sandeep Kumar Agrawal - LAW