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HIGH COURT OF CHHATTISGARH, BILASPUR Order Sheet MA No.53 of 2021 Mani Lal Sahu Versus Madan Lal Agrawal
| THROUGH VIDEO CONFERENCING | |
| 27/01/2022 Tumane | Shri Sanjay Patel, counsel for appellants. Shri Ashutosh Shukla, counsel for respondents No.4, 13, 14 & 19. Shri Ashish Gupta, Panel Lawyer for the State/respondent No.5. Shri Aadesh Ramteke, counsel appears on behalf of Shri Dhiraj Kumar Wankhede, counsel for respondent No.6. Heard on admission. Order passed separately, signed and dated. Sd/- (Sanjay S. Agrawal) Judge |
1. Mani Lal Sahu S/o Late Nandlal Sahu, Aged About 49 Years 2. Arjun Lal Sahu S/o Late Nandlal Sahu Aged About 60 Years
3. Anju Sahu S/o Late Nandlal Sahu, Aged About 47 Years
4. Smt. Shyam Bai D/o Late Nandlal Sahu (W/o Bhuneshwar Prasad Sahu) Aged About 50 Years
5. Smt. Shakun Sahu W/o Bhikham Lal Sahu, Aged About 42 Years 6. Pawan Kumar Sahu S/o Bhikham Lal Sahu, Aged About 19 Years 7. Sunita Sahu D/o Bhikham Lal Sahu, Aged About 22 Years At Present R/o Mudapaar Shivarinarayan, Tehsil Nawagarh, District Janjgir Champa Chhattisgarh
8. Kumari Puja Sahu, D/o Bhikham Lal Sahu, Aged About 23 Years At Present R/o Tiwaripara, Kharoud, Tehsil Pamgarh, District Janjgir Champa Chhattisgarh
9. Keshav Sahu S/o Bhikham Lal Sahu Aged About 20 Years Appellants from 1 to 6 and 9 are R/o Purani Basti, Korba, District Korba (Chhattisgarh), District : Korba, Chhattisgarh ---- Appellants Versus
1. Madan Lal Agrawal S/o Late Shri Mani Ram Agrawal Aged About
67 Years R/o Vastralaya, Shop No. B-1, B-2, B-3, Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh.
2. Raman Agrawal, S/o Madan Lal Agrawal, Aged About 35 Years R/o First Floor Of Sri Ram Vastralaya, Shop No. B-1, B-2, B-3, Heera Nand And Sons Complex, Power House Road, Korba, District Korba (Chhattisgarh)
3. Shiv Agrawal, S/o Late Parmeshwari Agrawal Aged About 38 Years R/o Shiv Parda Wala, Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh
4. Moti Lal Sahu S/o Late Nand Lal Sahu Aged About 50 Years R/o Purani Basti, Korba, Tehsil And District Korba (Chhattisgarh), 5. State Of Chhattisgarh Through Collector Korba, District Korba (Chhattisgarh)
6. Municipal Corporation, Korba Through Commissioner, Municipal Corporation Korba, District Korba Chhattisgarh
7. Kapil Jaiswal S/o Ramesh Jaiswal, Aged About 38 Years R/o Star Sports, Shop No. A-3, Heera Nand And Sons Complex, Power House Road, Korba, District Korba (Chhattisgarh)
8. Moti Lal Jain, S/o Late Mishri Lal Jain, Aged About 55 Years R/o Mahavir Jwellers, Shop No. B-4, A-9, A-10, 11 And Anjani Kunj Shop No. A-8 Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh.
9. Mahavir Prasad Kediya(wrongly mentioned as Kodiya in impugned order) S/o Late Badri Prasad Kediya, R/o Chhattisgarh Readymade Shop No. No.-B-5 And First Floor Heera Nand And Sons Complex, Power House Road, Korba, District Korba (Chhattisgarh)
10. Vinod Agrawal S/o Ramcharan Agrawal Aged About 62 Years R/o Laxmi Steel Emporium, Shop No.- B-6 Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh
11. Dilip Makwana S/o Vallabh Das Makwana Aged About 44 Years R/o Otis Tailors, Shop No.- A-01, Heera Nand And Sons Complex, Power House Road, Korba, District Korba (Chhattisgarh)
12. Mukesh Jain S/o Shri Madan Gopal Jain, Aged About 42 Years R/o Power Matching Centre, Shop No. B-10, Heera Nand And Sons Complex, Power House Road, Korba, District Korba (Chhattisgarh)
13. Gouri Shankar Agrawal, S/o Sagarmal Agrawal Aged About
35 Years R/o Peehar Sadi Centre, Shop No. B-15,16,17,18 Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh
14. Shankar Lal Agrawal S/o Sagarmal Agrawal Aged About 37 Years R/o Peehar Sadi Centre, Shop No. B-14 Heera Nand And Sons Complex, Power House Road, Korba, District Korba (Chhattisgarh)
15. Kusum Khatod W/o Sri Ashok Khatod Aged About 55 Years R/o Prachir Shri Manjushri Shop No. A-06,07 Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh.
16. Gopal Agrawal S/o Sri Ram Prasad Aged About 32 Years R/o Sonu- Monu Gift Emporium Shop No. B-07 And A-05 Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh.
17. Kamalchand Bothara, S/o Mohan Lal Bothara, Aged About
48 Years R/o Shop No. A-02 Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh
18. Ajay Bothara S/o Sri Mohan Lal Bothara Aged About 43 Years Bothara Luggage Shop No.-04, Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh.
19. Smt. Manju Agrawal, W/o Mahesh Agrawal Aged About 37 Years R/o Peehar Sadi Centre, Shop No. B-13 Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh.
20. Mahavir Prasad S/o Sri Shyam Lal Agrawal Aged About 65 Years R/o Neelam Garments Shop No. B-09, B-08, Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh.
21. Amrit Lal Baghela S/o Narsingh Das, Aged About 62 Years R/o Parag N.X And Parag Tailors, Shop No. B-11 And B-12 Heera Nand And Sons Complex, Power House Road, Korba, District Korba Chhattisgarh.
22. Shakuntala Sahu D/o Late Nand Lal Sahu, Aged About 57 Years R/o Purani Basti, Korba, District Korba Chhattisgarh.
23. Bhagwati Sahu S/o Late Nand Lal Sahu, Aged About 49 Years R/o Purani Basti, Korba, District Korba Chhattisgarh.
24. Smt. Indra Kumar D/o Late Nand Lal Sahu, Aged About 56 Years R/o Purani Basti, Korba, District Korba Chhattisgarh.
---- Respondents ________________________________________________________________
For Appellants: :Shri Sanjay Patel, Advocate For Respondent Nos. 4, 13, 14 & 19 :Shri Ashutosh Shukla, Advocate For State/ Respondent No.5 :Shri Ashish Gupta, Panel Lawyer For Respondent No.6 :Shri Aadesh Ramteke, Advocate on behalf of Shri Dhiraj Kumar Wankhede, Advocate -----------------------------------------------------------------------------------------------
Single Bench : Hon'ble Shri Justice Sanjay S. Agrawal
['SANJAY PATEL', 'Ashutosh Shukla', 'A G', 'DHIRAJ KUMAR WANKHEDE']
Order on Board
27.01.2022
1. Challenge to this appeal is the order dated 30.11.2021 passed in Civil Appeal No.14-A/2020, whereby, the learned appellate court has rejected the Plaintiffs' application for grant of temporary injunction.
2. Learned counsel for the Appellants/Plaintiffs submits that the finding of the Court below rejecting the application filed under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (for short the C.P.C.) by observing, inter alia, that one co-owner cannot be restrained by the another co-owner is apparently contrary to law. According to him, although, a co-owner is in possession over the joint property but, he has no right to change the user of the property in question without the prior consent of other co-owners. In support, he placed his reliance upon the decision rendered by the Supreme Court in the matter of T. Lakshmipathi And Ors. Vs. P. Nithyananda Reddy And Ors., reported in (2003) 5 SCC 150.
3. On the other hand, learned counsel appearing for the Respondents has supported the order impugned as passed by the court below.
4. I have heard learned counsel for the parties and perused the entire documents annexed with this memo of appeal carefully.
5. From perusal of the record, it appears that the Plaintiffs have instituted a suit claiming declaration to the effect that the property in question be declared to be the ancestral property and they are the co- owners of it, which was owned by their pre-decessors in interest namely, Nandlal Sahu and, praying further that the deed of Will, dated 25.9.2010, purported to have been executed by said Nandlal Sahu, in favour of his brother, namely, Moti Lal Sahu (Defendant No.4), be declared as null and void. It is alleged further in the plaint that Defendant No.4 has inducted Defendant Nos. 1 to 3 and 7 to 21 as his tenants and Defendant Nos. 13, 14 and 19 through him have started raising construction over the suit shop comprising of the Complex, known as “Heeranand and Sons Complex”, situated at Power House Road, Korba without his prior permission, therefore, they may be restrained from raising any construction over the alleged suit shop.
6. The aforesaid claim of the Plaintiffs has been dismissed by the trial court vide its judgment and decree dated 06.03.2020 in Civil Suit No.9-A/2014 as the Plaintiffs have failed to implead one of the sons of said Nandlal, namely, Jeevan Lal Sahu, who born out of his first wife, namely, Smt. Neera Bai. Accordingly, the claim of the Plaintiffs claiming joint ownership over the suit property has been dismissed, which has been questioned by the Plaintiffs in appeal along with moving an application under Order 39 Rule 1 and 2 read with Section 151 of C.P.C., seeking temporary injunction restraining the said Defendants from raising any construction over the suit shop pending decision of the appeal. Since, the Plaintiffs claim was dismissed for non-joinder of necessary party as provided under proviso to Order 1 Rule 9 of C.P.C., therefore, the Plaintiffs were not held to be the joint-owners of the property in question. That apart, Defendant No.4- Moti Lal Sahu is not alienating the property in question and if he and others have been restrained from construction and/or repairing the same, then it would rather cause an irreparable injury to them as they have collected the materials for it and, in absence of proving the prima face case, the court below has, therefore, not committed any illegality in rejecting their application filed under Order 39 Rule 1 and 2 read with Section 151 of C.P.C.
7. In so far as the reliance placed by learned counsel for the Appellants in the matter of T. Lakshmipathi And Ors. Vs. P. Nithyananda Reddy And Ors.(supra) is concerned, the same is however, not applicable with regard to the facts involved in the present case as in the instant matter, the other co-owner is not trying to take an exclusive possession of the property in question or trying to destroy the same in any man
