IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE HIRDESH

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ON THE 16 OF OCTOBER, 2025 MISC. PETITION No. 5786 of 2025 DEVENDRA SINGH Versus NAIB TEHSILDAR AND OTHERS Appearance:

Shri Harish Kumar Dixit- Senior Advocate assisted by Ms. Ritika Chaubey- Advocate for petitioner.

Shri Prabhat Pateriya- Government Advocate for respondents/State.

ORDER By way of this misc. petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 02-09-2025 passed by First District Judge, Gohad, District Bhind in Misc. Civil Appeal No. 32 of 2025 affirming the order dated 21-02-2025 passed by Additional Judge to the Court of Civil Judge, Senior Division, Gohad, District Bhind in Civil Suit No. 147-A of 2023, whereby the application filed by petitioner (plaintiff therein) under Order 39 Rule 1 and 2 read with Section 151 of CPC has been rejected.

2. A few facts necessary for adjudication of this petition, as narrated therein, are that petitioner filed a suit for declaration of possession and permanent injunction against respondents in respect of Government land bearing survey nos. 223 and 623, situated in village Jhakari, Tehsil Mau, District Gohad and also filed an application under Order 39 Rule 1 and 2 read with Section 151 of CPC seeking temporary injunction. Respondent No.1 did not file reply to the application, therefore, opportunity to file reply was closed. Respondents No. 2 to 4 proceeded ex parte before the trial Court and did not submit any reply to the application. The trial Court rejected the application of petitioner filed under Order 39 Rule 1 and 2 read with Section 151 of CPC holding that petitioner has suppressed/ concealed material facts regarding liquor shop in the Kuccha house over the land in dispute with the permission of Excise Department. Being aggrieved, petitioner filed a misc. civil appeal before the first appellate Court which was too dismissed by First District Judge, Gohad, District Bhind vide order dated 02-09-2025 passed in Misc. Civil Appeal No. 32 of 2025. Hence, this petition.

3. It is contended on behalf of petitioner that the impugned orders passed by the trial Court and the first appellate Court are illegal and contrary to law. The petitioner in his application along with affidavit had specifically stated that the disputed land is inhabited land which has been in his possession for the last 40 years, i.s. from the time of ancestors and he has also constructed permanent structures on the disputed land and the respondents- defendants are illegally and unethically encroaching upon the disputed land and are being evicted from it. So far as concealment of facts by the petitioner in civil suit regarding running of wine shop over the disputed land is concerned, it is contended that the wine shop is duly licensed shop of tenant of petitioner, namely, Ramkumr Sikarwar and the same is being run in a complete legal manner under the licence of competent Government authority as well as with the permission of Excise Department, therefore, the petitioner has not challenged the second part of notice in the civil suit and he has also not sought any relief against the same before the Trial Court. Thus, there is no concealment fact on the part of petitioner. Therefore, the Courts below have committed error in declining to exercise its jurisdiction of granting temporary injunction on this extraneous grounds. Placing reliance on the judgment of Hon'ble Supreme Court in the case of Arunima Baruah vs. Union of India and Others (2007) 6 SCC 120, learned Senior Counsel appearing for petitioner submits that if the facts suppressed is not material for determination of the lis between the parties, the Court may not refuse to exercise its discretionary jurisdiction. Hence, prayed for setting aside the impugned orders.

4. On the other hand, learned Counsel for the State, by supporting the impugned orders passed by trial Court as well as first appellate Court, opposed contention