IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL st ON THE 1 OF MAY, 2023 MISC. PETITION No. 2419 of 2023 BETWEEN:-

GANPAT RAO SONARE S/O LATE SHRI BHEEMRAO, AGED ABOUT 54 YEARS, OCCUPATION: AGRICULTURIST R/O VILLAGE BAGHODA, TAHSIL MULTAI AND DISTRICT BETUL (MADHYA PRADESH)

.....PETITIONER (BY SHRI CHANDRAKANT MAGARDE- ADVOCATE)

AND

1. PANJAB RAO (DIED) THROUGH LEGAL HEIRS:

SUBHASH SONARE S/O LATE SHRI PANJAB RAO, 1(A). AGED ABOUT 55 YEARS, R/O NEAR LILU SADAN MAHAVEER WARD TIKARI BETUL, DISTRICT BETUL (MADHYA PRADESH)

1(B). BAKULA D/O LATE SHRI PANJAB RAI W/O SHRI BABURAO GEED, AGED ABOUT 60 YEARS, R/O SIRSAWADI, TEHSIL MULTAI, DISTRICT BETUL (MADHYA PRADESH)

1(C). BACHCHHALA D/O LATE SHRI PANJAB RAI W/O SHRI DURGADAS, AGED ABOUT 47 YEARS, R/O NEAR DEVMATA HOSPITAL AYODHYA EXTENSION BHOPAL (MADHYA PRADESH)

2. SMT. SHAKUNTALA (DEAD) THROUGH LEGAL REPRESENTATIVES:

2(A). UTTAM RAO S/O LATE SHRI AJAB RAO, AGED ABOUT 76 YEARS, R/O VILLAGE BAGHODA PRABHAT PATTAN, TEHSIL MULTAI, DISTRICT BETUL (MADHYA PRADESH)

2(B). BASANT RAO S/O LATE SHRI AJAB RAO, AGED ABOUT 74 YEARS, R/O VILLAGE BAGHODA PRABHAT PATTAN, TEHSIL MULTAI, DISTRICT BETUL (MADHYA PRADESH)

Signature Not Verified Signed by: RASHMI

3. GOMA (DEAD) THROUGH LEGAL REPRESENTATIVES:

3(A). NATTHU S/O LATE SHRI GOMA, AGED ABOUT 55 YEARS, R/O VILLAGE BAGHODA PRABHAT PATTAN, TEHSIL MULTAI, DISTRICT BETUL (MADHYA PRADESH)

3(B). SUBHASH S/O LATE SHRI GOMA, AGED ABOUT 45 YEARS, R/O VILLAGE BAGHODA PRABHAT PATTAN, TEHSIL MULTAI, DISTRICT BETUL (MADHYA PRADESH)

4. SURESH S/O LATE SHRI KRISHN RAO, AGED ABOUT 70 YEARS, R/O VILLAGE BAGHODA PRABHAT PATTAN, TEHSIL MULTAI, DISTRICT BETUL (MADHYA PRADESH)

5. STATE OF M.P. THROUGH COLLECTOR, BETUL DISTRICT BETUL (MADHYA PRADESH)

.....RESPONDENTS This petition coming on for admission this day, the court passed the following:

ORDER

This miscellaneous petition has been preferred by petitioner/plaintiff challenging the order dated 11/04/2023 passed by 2nd District Judge, Multai, District Betul in MCA No.13/2022 (6/2022), reversing the order dated 20/07/2022 passed by 2nd Civil Judge Junior Division, Multai in Civil Suit No.29-A/2022, whereby learned trial Court allowed the application for temporary injunction filed by the petitioner/plaintiff holding him to be in possession of the suit property, which has been set aside by learned first appellate Court.

2. Learned counsel for the petitioner/plaintiff submits that on the basis of Will dated 18/12/2020, he is exclusive bhumiswami/owner and in possession of the suit property, which was executed by its predecessor-in-title namely Saroj Signature Not Verified Signed by: RASHMI Bai W/o Shyam Rao, who died issueless. He submits that after death of Saroj Bai, the plaintiff is in exclusive cultivating possession of the suit property and his possession was also found by Patwari in his report prepared during the proceeding of mutation. Accordingly, he submits that learned appellate Court has erred in reversing the order passed by learned trial Court even without considering the report of Patwari and has erred in holding the plaintiff and defendants both to be in joint possession of the suit property. With the aforesaid submissions, he prays for allowing the miscellaneous petition.

3. Heard learned counsel for the petitioner and perused the record.

4. Undisputedly, Saroj Bai W/o Shyam Rao was owner/bhumiswami and in possession of the suit property and if the Will propounded by the plaintiff, is not considered at the present stage of suit, then all the parties to the suit being co-owners, would succeed the property left by Saroj Bai. Undisputedly, the Will is still required to be proved by the plaintiff.

5. It is well settled that one co-owner is deemed to be in possession of every inch of the land and injunction in favour or against the co-owner cannot be granted. Except the Patwari report, which was called in the mutation proceeding, no document is available on record to show that the