Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nMadhya Pradesh High Court\nRajendra vs Jay Kumar on 23 August, 2021Author: Rajeev Kumar Dubey\n                                                                                        1                   MP No.3356 of 2018\n\n                                                        HIGH COURT OF MADHYA PRADESH\n                                                             PRINCIPAL SEAT AT JABALPUR\n\n                                      Single Bench :        Hon'ble Shri Rajeev Kumar Dubey, J.\n\n                                                                  Misc. Petition No.3356/2018\n\n\n                                                                          Rajendra & Ors.\n                                                                                  vs.\n                                                                         Jay Kumar & Ors.\n                                      --------------------------------------------------------------------------------------------\n\n                                      Shri S.K. Agrawal, learned counsel for the petitioners.\n\n                                      Shri R.K. Verma, Senior Advocate with Shri Rammurti Tiwari, counsel for\n\n                                      the respondent No.4.\n\n                                      --------------------------------------------------------------------------------------------\n\n                                                                             ORDER\n\n                                                             Reserved on : 10/08/2021\n                                                             Delivered on : 23/08/2021\n\n                                             This petition has been filed under Article 227 of the Constitution of\n                                      India against the order dated 17.05.2018 passed by the Additional District\n                                      Judge, Sihora, Jabalpur in Misc. Civil Appeal No.3/2018 whereby the\n                                      learned Additional District Judge partly allowed the petitioners/plaintiffs\n                                      application filed under Order 39 Rule 1 & 2 of CPC restraining the\n                                      respondents/defendants from interfering in the possession of the appellants\n                                      only over the land survey No.1431 area 0.04 Hectare located at village\n                                      Gandhi Gram, Tehsil Sihora, District Jabalpur.\n\n                                      2.     Brief facts of the case which are relevant for the disposal of the\n                                      present petition are that petitioners/plaintiffs filed a civil suit No. 27A/2017\n                                      to declare them owner of the land bearing survey No.1299 (old survey\n                                      No.623/3, 624/3), area 0.14 Hectare, survey No.1363 (old survey No.793)\nSignature Not Verified\n  SAN\n                                      area 0.24 Hectare , survey No.1380 (old survey No.781/1) area 0.20 Hectare,\nDigitally signed by RANJEET AHIRWAL\nDate: 2021.08.23 16:54:56 IST\n                                                                                     2                  MP No.3356 of 2018\n\n                                      survey No.1425 (old survey No.819/2) area 0.13 Hectare, survey No.1430\n                                      (old survey No.801/1) area 0.14 Hectare, survey No.1431 (old Survey\n                                      No.808/2) area 0.04 Hectare, survey No.1432 (old Survey No.808/2) area\n                                      0.04 Hectare, survey No.1434 (old Survey No.808/1) area 0.09 Hectare,\n                                      survey No.1435 (old Survey No.808/1) area 0.18 Hectare, survey No.1450\n                                      (old Survey No.826) area 0.24 Hectare, survey No.1472 (old Survey\n                                      No.836/2) area 0.04 Hectare, survey No.1473 (old Survey No.836/1) area\n                                      0.06 Hectare located at villege Gandhi Gram, Tehsil Sihora, District Jabalpur\n                                      (hereinafter   referred    to   as    "suit       land")   and    restraining   the\n                                      respondents/defendants to not to interfere in the possession of the appellant\n                                      over suit land averring that the suit land was purchased by the grandfather of\n                                      petitioners no.1 and 3 to 5 by the registered sale deed and after the death of\n                                      petitioners' ancestors, petitioners became the owner of the suit land and the\n                                      land is in their possession. Their names were also mutated over suit land in\n                                      revenue records. It is further averred that the respondents/defendants without\n                                      any right wrongly got the suit land mutated in their names in the revenue\n                                      record against which the petitioners/plaintiffs also filed objection before the\n                                      Tahsildar which was rejected by the Tahsildar vide order dated 29.12.2016\n                                      passed in case No.60-A/61-A/2015-16. Against that order the petitioners also\n                                      filed an Appeal No.59/Appeal/2016-17 which was also rejected by the Sub-\n                                      Divisional Officer Sihora vide order dated 13.06.2017. So it be declared that\n                                      appellants/plaintiffs are the owner of the land and the respondents be\n                                      restrained from interfering in the possession of the petitioners over the suit\n                                      land. Appellants/plaintiffs also filed an application under Order 39 Rule 1 &\n                                      2 of CPC for getting a temporary injunction.\n\n                                      3.    The respondents No.1 to 4 in his reply opposed the prayer and\n                                      submitted that the suit land was sold to the ancestors of the respondents by\n                                      its owner Raghuvar Kewat and Mithai Kewat in the year 1963 and 1967 by\n                                      registered sale deeds and since then the ancestors of the respondents and\n                                      after their death the respondents are in the possession of the suit land. The\n                                      petitioners have no right or title over the suit land and the land is not in their\n                                      possession. The petitioners had also filed an application before Tehsildar for\nSignature Not Verified\n  SAN                                 correction in the revenue records, which had also been rejected by the\nDigitally signed by RANJEET AHIRWAL\nDate: 2021.08.23 16:54:56 IST\n                                                                                  3                  MP No.3356 of 2018\n\n                                      Tehsildar. There is no prima facie case in the favour of the petitioners, so the\n                                      application be dismissed.\n\n                                      4.    Learned Second Civil Judge Class I, Sihora rejected petitioners'\n                                      application holding that the petitioners are not in the possession over the suit\n                                      land and no prima facie case is made out in their favour against which\n                                      petitioners filed Miscellaneous Civil Appeal No.3/2018 which was partly\n                                      allowed by the Additional District Judge, Sihora holding that from the sale\n                                      deed dated 18/06/1945 it appeared that Chheddi Kewat, grandfather of the\n                                      petitioners No.1 and 3 to 5 had purchased total 09.95 Hectare land of 12\n                                      Survey numbers (including disputed land) from Chhoti Bai vide registered\n                                      sale deed dated 16/06/1945 and out of which Hariprasad, father of the\n                                      respondent No.1 and 2 had purchased only 2.206 Hectare of land from\n                                      Raghuvar Kewat i.e., father of the plaintiffs No.1 and 3 to 5 while in the\n                                      revenue records the name of the respondents is mentioned over 2.320\n                                      Hectare of land which shows that the respondents are in possession of more\n                                      land than the land purchased by Hariprasad from Raghuvar Kewat. The land\n                                      Survey No.1430 (old No.809) area 0.140 Hectare which was purchased by\n                                      Chhiddi Kewat from Chhoti Bai was not sold by Raghuvar Kewat to Hari\n                                      Prasad while the name of respondents is recorded as owner over that land\n                                      also which shows that the respondents wrongly got said land mutated in their\n                                      names in revenue records. The position of the respondents over that land is\n                                      as an encroacher. The court directed the respondents that they do not\n                                      interfere in the possession of appellants over the land survey No.1430 area\n                                      0.140 Hectare located at Village Gandhi Gram, Tahsil Sihora, District\n                                      Jabalpur.\n\n                                      5.    Learned First Appellate Court in its order also held that the land\n                                      Survey No.1425 (wrongly typed in the order as Survey No.1424 area 0.080\n                                      Hectare) area 0.140 Hectare which has been sold by respondents No.1 and 2\n                                      to respondent No.4 is also in addition to the land which was purchased by\n                                      Hariprasad from Raghuveer Singh. But regarding that land (further referred\n                                      to as disputed land) the First Appellate Court did not give any relief to the\n                                      petitioners. Being aggrieved from this petitioners filed this petition.\nSignature Not Verified\n  SAN\n\n\n\n\nDigitally signed by RANJEET AHIRWAL\nDate: 2021.08.23 16:54:56 IST\n                                                                                 4                 MP No.3356 of 2018\n                                      6.     Learned counsel for the petitioners submitted that it is admitted fact\n                                      that the disputed land Survey No.819/2 area 0.35 acres (New survey\n                                      No.1425 area 0.130 Hectare) earlier belonged to the grandfather of the\n                                      petitioners No.1 & 3 to 5. After death of grandfather of petitioners No.1 & 3\n                                      to 5, land of survey No.819/2 was recorded in the names of their sons\n                                      Raghuvar Kewat and Mithai Kewat, thereafter partition took place between\n                                      them on 14.06.1963 whereby Raghuvar Kewat was granted 0.17 acres of\n                                      land and Mithai Kewat was granted 0.18 acres of land. Accordingly, the suit\n                                      land was mutated in their names in the revenue record. Mithai Kewat sold\n                                      his 0.18 acre of land vide registered sale deed dated 15.06.1963 to Hari\n                                      Prasad. Raghuvar Kewat sold only 0.069 acres of land from his share by\n                                      registered sale deed dated 26/12/1967. Thus the total area of land survey\n                                      No.1425 sold by Mithai Kewat and Raghuvar Kewat comes to 0.0996\n                                      Hectare, while respondent No.4 Urmila is shown to be owner of 0.130\n                                      Hectare of land forming part of survey No.1425. So it is apparent that the\n                                      name of the respondent No.4 is recorded over excess land of survey\n                                      No.819/2 area 0.35 acres (New Survey No.1425 area 0.130 Hectare) which\n                                      was actually sold by Mithai Kewat and Raghuvar Kewat to Hariprasad. The\n                                      findings to the said effect have also been recorded by the First Appellate\n                                      Court in para 17 of its order and held that the respondent No.4 is not the\n                                      lawful owner of the whole land of survey No.1425, but she is the encroacher.\n                                      Even then, the First Appellate Court did not grant an injunction in favour of\n                                      petitioners regarding that land. Because the ownership of respondents over\n                                      land survey No.1425 is disputed, therefore they cannot be permitted to\n                                      change the status of the land survey No.1425 during the pendency of the\n                                      suit. So the respondents be restrained from altering the nature of the disputed\n                                      property or from raising any permanent construction on the said land till\n                                      final disposal of the suit.\n\n                                      7.     Learned counsel for the respondent No.4 submitted that the area of\n                                      disputed land old survey No.819/2 (new No.1425) was 0.35 acres, out of\n                                      which 0.18 acres of land was transferred by Mithai Kewat by registered sale\n                                      deed dated 15/06/1963 in favour of Hariprasad and remaining area of the\nSignature Not Verified\n  SAN                                 land 0.17 acres was transferred by Raghuvar Kewat by registered sale deed\nDigitally signed by RANJEET AHIRWAL\nDate: 2021.08.23 16:54:56 IST\n                                                                                  5                 MP No.3356 of 2018\n\n                                      dated 26/12/1967 in favour of Hariprasad. In the sale deed, area of 0.69\n                                      Hectares is mentioned while petitioners are under misapprehension that it is\n                                      mentioned as 0.69 acres therein. In the year 1967, when the sale deed of\n                                      disputed land was executed by the Raghuvar Kewat the hectare scale was\n                                      used to measure the land. In converting land area 0.69 Hectare into acres this\n                                      comes to exactly 0.17 acres. Defendant No.1 & 2 Jay Kumar and Shiv\n                                      Kumar had transferred their land i.e. Survey No.1424 and 1425 ad-\n                                      measuring 0.410 Hectare in favour of defendant No.4 Urmila by executing a\n                                      sale deed dated 10.10.2005. After purchasing the suit land, the defendant\n                                      No.4 got her name mutated over the suit land. The defendant No.4 had also\n                                      applied for diversion of the said land and the same was done vide order\n                                      dated 17.05.2013 and the land was diverted from agricultural land to\n                                      commercial land. Since the year 2005 upto filing of the suit nothing was\n                                      done by the plaintiffs and thereafter when the brother in law of the\n                                      respondent No.4 started construction of a petrol pump over the disputed land\n                                      this motivated litigation has been filed only to harass the respondent No.4.\n\n                                      8.    This court has gone through the record and the arguments putforth by\n                                      the learned counsels of both the parties. Though petitioners filed the Civil\n                                      Suit for declaration and injunction regarding whole suit land (mentioned in\n                                      para 2 of the order), but by way of this petition they challenged the findings\n                                      of First Appellate Court only regarding survey No.1425 area 0.130 Hectare,\n                                      (disputed land) so this order shall confine only up to that land.\n\n                                      9.    The petitioners filed the Civil Suit to declare them owner of entire suit\n                                      land (mentioned in para 2 of the order), averring that the suit land was\n                                      purchased by the petitioners' grandfather by the registered sale deed and\n                                      after the death of petitioners' ancestors, they became the owner of the suit\n                                      land and the suit land is in their possession. Their names were also mutated\n                                      over suit land in revenue records. It is further averred that the respondents\n                                      without any right wrongly got the suit land mutated in their names in the\n                                      revenue record. While in the appeal memo filed before First Appellate Court\n                                      petitioners themselves pleaded that the entire suit land measuring 3.7 acres\n                                      was purchased by Chhiddi Kewat, grandfather of the Petitioners No.1 and 3\nSignature Not Verified\n\n                                      to 5 from Chhoti Bai vide registered sale deed dated 16/06/1945. After the\n  SAN\n\n\n\n\nDigitally signed by RANJEET AHIRWAL\nDate: 2021.08.23 16:54:56 IST\n                                                                                  6                  MP No.3356 of 2018\n\n                                      death of Chhiddi Kewat his sons Raguhvir Kewat, father of the plaintiffs\n                                      No.1 and 3 to 5 and Mithai Kewat became the owner of that land. Thereafter,\n                                      partition took place between them on 14.06.1963, whereby both Raghuvar\n                                      Kewat and Mithai Kewat were equally granted 1.85 acres of land each. Out\n                                      of that land Mithai Kewat sold his entire land i.e., 1.85 acres to Hariprasad,\n                                      father of the respondent No.1 and 2 while Raguhuvar Kewat, father of the\n                                      petitioners No.1 and 3 to 5 only sold 0.356 acres of land out of his 1.85 acre\n                                      of land. Remaining 1.494 acres of land was with him and after the death of\n                                      Raghuvar Kewat the said land came in the possession of the petitioners and\n                                      since then the petitioners have been occupying the said land. This clearly\n                                      shows that petitioners wrongly pleaded in their plaint that they are the\n                                      owners and possession holder of the entire suit land. They are neither the\n                                      owners nor are in possession of the entire suit land.\n\n                                      10.   Though learned counsel of the petitioners submitted that it is admitted\n                                      fact that the disputed land survey No.819/2 area 0.35 acres (New survey\n                                      No.1425 area 0.130 Hectare) earlier belonged to the grandfather of the\n                                      petitioners No.1 & 3 to 5 which after the death of grandfather of petitioners\n                                      No.1 & 3 to 5, land of survey No.819/2 was recorded in the names of their\n                                      sons Raghuvar Kewat and Mithai Kewat, and thereafter in the partition that\n                                      took place between them on 14.06.1963 Raghuvar Kewat was granted 0.17\n                                      acres of land and Mithai Lal was granted 0.18 acres of land. Accordingly, the\n                                      suit land was mutated in their names in the revenue record. Mithai Kewat\n                                      sold his 0.18 acres of land vide registered sale deed dated 15.06.1963 to Hari\n                                      Prasad. Raghuvar Kewat sold only 0.069 acres of land from his share 0.18\n                                      acres by registered sale deed 26/12/1967 and petitioners are the owner of the\n                                      land of survey No.1425 up to the remaining share of Raguvir Kewat. But\n                                      that argument also has no force as according to Order VI Rule 5 of Code of\n                                      Civil Procedure only those allegations of fact in the plaint which are\n                                      admitted by the defendant or not denied specifically by the defendant are the\n                                      admitted facts. While in this case the petitioners neither specifically pleaded\n                                      these facts in their plaint that they are the owner of part of the land of survey\n                                      no.1425 nor has this fact been admitted by the respondents in their written\nSignature Not Verified\n  SAN\n\n\n\n\nDigitally signed by RANJEET AHIRWAL\nDate: 2021.08.23 16:54:56 IST\n                                                                                   7                 MP No.3356 of 2018\n\n                                      statement. So that argument of the learned counsel of the petitioners is\n                                      without the pleading.\n\n                                      11.      In the plaint, petitioners pleaded that the suit land was muted in their\n                                      name after the death of their ancestors, but they did not file any document to\n                                      show that the disputed land was at any point of time recorded in their names\n                                      in revenue records. On the contrary from the Khasra entries of the disputed\n                                      land, it appears that in the year 1967 the disputed land was mutated in the\n                                      name of Hariprasad and thereafter mutated in the name of respondents No.1\n                                      and 2.\n\n                                      12.      Later in 2005 disputed land was mutated in the name of respondent\n                                      No.4 and at present also disputed land is recorded in the name of respondent\n                                      no.4. According to Section 117 of MPLRC the revenue entries shall be\n                                      presumed to be correct until the contrary is proved and in the revenue record\n                                      the land is recorded in the name of respondent No.4 so it will be presumed\n                                      that the suit land is in possession of respondent No.4. Learned trial court as\n                                      well as the first appellate court found that respondent No.4 is in possession\n                                      of suit land. Though the First Appellate Court held that the possession of\n                                      respondent No.4 over disputed land seems to be as encroacher. It is the\n                                      concurrent finding of both the courts below that the respondent No.4 is in\n                                      possession of disputed land. The petitioners did not seek the relief of\n                                      possession regarding disputed land. According to Section 34 of Specific\n                                      Relief Act without seeking relief of possession, a simpliciter suit of\n                                      declaration is not maintainable and this fact will be considered in the prima\n                                      facie case of the petitioners. So no prima facie case is made out in favour of\n                                      the petitioners regarding suit land.\n\n                                      13.      Learned counsel for the petitioners submitted that the petitioners are\n                                      the owners of disputed land and possession follows ownership. So it will\n                                      presumed that petitioners are in the possession of suit land. In this regard\n                                      learned counsel for the petitioners also placed reliance upon the judgements\n                                      of the Apex Court passed in the case of Maharwal Khewaji Trust (Regd.)\n                                      Faridkot v. Baldev Dass reported in (2004) 8 SCC 488 and Anathula\n\nSignature Not Verified\n                                      Sudhakar v P. Buchi Reddy (Dead) by Lrs. And others reported in (2008)\n  SAN\n\n\n                                      4 SCC 594. But the facts of both the cases do not match with the instant\nDigitally signed by RANJEET AHIRWAL\nDate: 2021.08.23 16:54:56 IST\n                                                                                  8                  MP No.3356 of 2018\n\n                                      case. In the first case, Hon'ble Apex Court only held that unless and until a\n                                      case of irreparable loss or damage is made out by a party to the suit, the\n                                      court should not permit the nature of the property being changed. In this case\n                                      petitioners themselves in their appeal memo admitted that they are the\n                                      owners of the part of disputed land, some part of the disputed land has\n                                      already been sold by the earlier owners of that land and which part of the\n                                      suit land belongs to the petitioners is also not clear. So if respondent No.4\n                                      is prohibited from constructing over the disputed land, he will suffer\n                                      irreparable damage. In the second case the disputed property was sold in\n                                      favour of the defendant by Damodar Rao who was shown as registered\n                                      owner in the municipal records. while in this case in the revenue record the\n                                      name of the respondent No.4 is recorded over the disputed land. So those\n                                      judgements do not help petitioners. On the contrary in the case of Anathula\n                                      Sudhakar (supra), Hon'ble Apex Court clearly held that "Where a cloud is\n                                      raised over the plaintiff's title and he does not have possession, a suit for\n                                      declaration and possession, with or without a consequential injunction, is the\n                                      remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is\n                                      out of possession, he has to sue for possession with a consequential\n                                      injunction." While in the instant case petitioners have not sought relief of\n                                      possession over suit land. So in the considered opinion of this Court, the\n                                      learned trial court as well as First Appellate Court did not commit any\n                                      mistake in not giving injunction in favour of petitioners regarding disputed\n                                      land survey No. 1425. Hence petition has no force and liable to be dismissed\n                                      and hereby dismissed.\n\n                                                                                     (Rajeev Kumar Dubey)\n                                                                                              Judge\n                                      (ra)\n\n\n\n\nSignature Not Verified\n  SAN\n\n\n\n\nDigitally signed by RANJEET AHIRWAL\nDate: 2021.08.23 16:54:56 IST