IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SUBODH ABHYANKAR th ON THE 14 OF JULY, 2023 MISC. PETITION No. 1632 of 2022 BETWEEN:-

BALRAM S/O KALU, AGED ABOUT 70 YEARS, OCCUPATION: AGRICULTURE R/O VILLAGE PIPALJHAR (MADHYA PRADESH)

.....PETITIONER (BY MS. PRANJALI YAJURVEDI, ADVOCATE)

AND

1. ATMARAM S/O DEVRAM, AGED ABOUT 49 YEARS, OCCUPATION: AGRICULTURE R/O BARWAH (MADHYA PRADESH)

2. SHANTILAL S/O DEVRAM, AGED ABOUT

46 YEARS, OCCUPATION: AGRICULTURE BARWAH, (MADHYA PRADESH)

3. CHINTARAM S/O DEVRAM, AGED ABOUT

43 YEARS, OCCUPATION: AGRICULTURE BARWAH, (MADHYA PRADESH)

4. JAMNABAI W/O DEVRAM, AGED ABOUT

68 YEARS, OCCUPATION: AGRICULTURE BARWAH, (MADHYA PRADESH)

5. STATE OF M.P. THR. COLLECTOR, KHARGONE (MADHYA PRADESH)

.....RESPONDENTS (BY MS. BHAGYSHREE GUPTA, GOVT. ADVOCATE)

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

ORDER

1] The petitioner/plaintiff has been filed the present petition under Signature Not Verified Article 227 of the Constitution of India against the order dated 08.03.2022 (Annexure P/6), passed in Misc. Civil Appeal No.07/2019, by the Second Additional District Judge, Barwaha, Mandleshwar (M.P.) whereby, while allowing the application for temporary injunction dated 22.07.2019, the order passed by Civil Judge Class-I, Barwaha, Mandleshwar, in Civil Suit No. 09-A/2019 has been reversed.

2] In brief, the facts of the case are that a civil suit has been filed by the plaintiff for declaration and permanent injunction in respect of the agricultural land bearing survey Nos. 227/2, 228/2 situated at Village Pipalijhar, Tehsil Barwaha, District Khargone on the ground that the land is entered into the revenue record in the name of the plaintiff from which, the defendants are trying to dispossess the plaintiff. The application filed under Order 39 Rule 1 & 2 of the CPC has been allowed by the trial court vide its order dated 22.07.2019 holding that the plaintiff is in possession of the suit property. And, thus, directing the respondents not to interfere in the possession of the petitioner/plaintiff.

3] The aforesaid order has been challenged by the defendants No. 1 to 4 before the Second Additional District Judge, Barwaha, District- Mandleshwar who vide its order dated 08.03.2022 has reversed the order passed by the Civil Court holding that the plaintiff has not come to the court with clean hands and also holding that the plaintiff has not been able to prove his prima-facie case. The aforesaid order dated

08.03.2022 is under challenge before this Court.

Signature Not Verified

4] Counsel appearing for the petitioner has submitted that the appellate court has erred in reversing the order passed by the trial court specially when the plaintiff had already proved that he was in possession of the suit property.

5] Counsel appearing for the respondent No.5/State on the other hand, has opposed the prayer.

6] None for the respondents No.1 to 4 despite service of notice.

7] Heard the learned counsel for the respondent/State and also perused the record.

8] From the record, it is apparent that the learned Judge of the trial court has allowed the application for temporary injunction holding that the plaintiff is in possession of the suit property relying upon the revenue record of 2018-2019 also holding that at part of the survey No. 227/2, the names of the defendants No.1 to 4 are mentioned as the possessor of the land. But, according to the learned Judge of the trial court, the documents filed by the defendants are not sufficient to rebut the documents regarding survey No.228/2 filed by the plaintiff. And, also holding that even according to the demarcation report submitted by the defendants, it appears that the plaintiff is in possession of the land situated at north east side of the disputed land. Whereas, the appellate court has held that after the death of Gheesaji, there was a partition between his two sons viz; Kalu and Balram around 70-88 years ago a