IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA

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ON THE 18 OF DECEMBER, 2025 SECOND APPEAL No. 522 of 2011 LAKHANLAL SHARMA Versus GOPAL SHARMA AND OTHERS Appearance:

Shri Vivek Khedkar - Senior Advocate with Shri Himanshu Pathak -

Advocate for appellant.

Shri Harish Dixit - Senior Advocate with Shri Nimish Hardeniya -

Advocate for respondents.

JUDGMENT

1. The Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 30/9/2011 passed by Fifth Additional District Judge, Gwalior, in Civil Appeal No.11A/2011, as well as the judgment and decree dated 31/1/2011 passed by the Sixth Additional Civil Judge, Class 2 to the Court of First Civil Judge, Class 2, Gwalior, in Civil Suit No.40-A/2010.

2. The appellant is the plaintiff who has lost his case from both the Courts below.

3. The facts necessary for disposal of present appeal, in short, are that the appellant/plaintiff filed a suit for permanent injunction simplicitor on the ground that he is the owner and in possession of 2400 square feet of land forming part of Survey No. 2061 min.1 situated in village Goshpura. The disputed plot, as well as the other properties, were ancestral properties, and in a family partition which took place about 30 years back, the plot in question came to his share and since then he is in possession of the same, and similarly the other co-sharers are in possession of their respective plots. On 4/3/2010, the defendants had tried to forcibly take possession of the plot in question. Accordingly, a police report was lodged at Police Station Gola Ka Mandir and a complaint was also made to the S.P., Gwalior. It was claimed that the defendants are trying to dispossess the plaintiff by showing of firearms. Accordingly, a suit was filed simplicitor for permanent injunction.

4. The defendants filed their written statement and claimed that the plot in question belongs to defendant No.1, which was received by defendant No.1 in a family partition. The other plaint averments were also denied. 5. The trial Court, after framing issues and recording evidence, dismissed the suit.

6. Being aggrieved by the judgment and decree passed by the trial Court, the appellant preferred an appeal, which too has been dismissed by the appellate Court.

7. Challenging the judgment and decree passed by the Courts below, it is submitted by counsel for the appellant that once the factum of family partition about 30 years back was not denied by the defendants, then the appellate Court has committed a material illegality by not treating the appellant as the owner and in possession of the property in dispute. The appellate Court has erroneously given a finding that "all the family members are in joint possession of the plot in question, therefore it cannot be held that the plaintiff is in exclusive possession of the property in dispute". It is submitted that under the facts and circumstances of the case, the Courts below have committed a material illegality by not granting a decree for permanent injunction.

8. Per contra, the appeal is vehemently opposed by counsel for the respondents. Shri Dixit supported the findings recorded by the Courts below.

9. The first question for consideration is as to whether the suit simplicitor for permanent injunction was maintainable or not ?

10. The Supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 has held as under :-

"21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of di