Ganesha vs Jagannath And Another

This Misc. Petition under Article 227 of the Constitution of India has been filed against the order dated 13-3-2020 passed by 1st Add. District Judge, Mugawali, Distt. Ashoknagar in M.C.A. No. 2/2018 by which the order dated 10-4-2018 passed by 3rd Civil Judge Class 2 Mungawali, Distt. Ashoknagar in C.S. No. 65A/2017 has been affirmed, by which a temporary injunction has been issued against the petitioner.

The facts of the case are that the petitioner filed a suit for declaration of title and permanent injunction on the ground that earlier the land bearing survey no. 6/17 area 10e.045 hectares was a Govt. land and in samvat 2013, the said land was given to the petitioner on lease and from thereafter, he is in cultivating possession of the same. ON 15-4-2017, the defendant extended a threat that the petitioner should not cultivate the land and the land has been transferred in his name. Thereafter, on verification, it was found by the petitioner, that the respondent no.1, in connivance with the revenue authorities has got his name mutated in the revenue records.

An application for grant of temporary injunction was also filed by the petitioner.

The respondent no.1 filed his reply to the application and pleaded that he is in possession of the land in dispute. It was further pleaded that on the basis of a judgment and decree passed by the Court of competent jurisdiction, the name of the respondent no.1 was recorded in the revenue records. Further the respondent no.1 also filed an application under Order 39 Rule 1 and 2 C.P.C. for grant of temporary injunction.

The petitioner filed his reply to the application for temporary injunction filed by the respondent no.1.

The Trial Court by order dated 10-4-2018 passed in C.S. No. 65A/2017 rejected the application filed by the petitioner and allowed the application filed by the respondent no.1 and issued an order of temporary injunction against the petitioner.

Being aggrieved by the order of the Trial Court, the petitioner preferred a Misc. Appeal under Order 41 Rule 1(r) CPC, which has been dismissed by the impugned order.

Challenging the orders passed by the Court below, it is submitted by the Counsel for the petitioner, that an application under Order 39 Rule 1 and 2 CPC on behalf of the defendant is not maintainable. Further, the judgment and decree, on which the respondent no.1 has placed reliance is a forged document, and both the Courts below have failed to see that in fact the petitioner is in possession of the land in dispute. It is further submitted that instead of issuing an order of temporary injunction, the Courts below should have directed the parties to maintain the status quo, so that a party who is in possession of the land in dispute may remain in possession during the pendency of the Suit.

Heard the learned Counsel for the petitioner.

So far as the question of maintainability of an application under Order 39 Rule 1 and 2 C.P.C., by a defendant is concerned, the controversy is no more res integra.

A Co-ordinate bench of this Court in the case of Nandu Vs. Jamuna Bai, reported in 2016(3) MPLJ 604 has held that an application under Order 39 Rule 1 and 2 CPC by a defendant is maintainable if exigencies as provided under Order 39 Rule 1 and 2 CPC exist.

Therefore, it is held that the application filed by the respondent no. 1 under Order 39 Rule 1 and 2 CPC was maintainable.

Both the Courts below have given a concurrent findings of fact that the respondent no.1 is in possession of the land in dispute and no perversity could be pointed out by the Counsel for the petitioner. The findings of possession of the respondent no.1 is based on appreciation of documentary evidence. Further, this Court while exercising its power under Article 227 of the Constitution of India, cannot interfere with the findings of fact unless and until they are pointed to be perverse.

So far as the contention of the Counsel for the petitioner, that the judgment and decree on which the respondent no.1 has placed reliance is a forged document is concerned, it is suffice to mention that there is no pleading in the writ petition in that regard.

The next contention of the petitioner, that instead of issuing temporary injunction, the Courts below should have directed for maintaining the status quo, so that whosoever is in possession of the land in dispute, may remain in possession is concerned, it is suffice to say that the submission made by the Counsel for the petitioner is misconceived and devoid of merits.

While deciding the application under Order 39 Rule 1 and 2 CPC, the Trial Court is required to give a finding (Which will not have any bearing at the time of final disposal of suit) with regard to the fact that which party is in possession of the property in dispute. By directing the parties to maintain the status quo, the Trial Court cannot give a license to the litigating parties to decide the question of possession on their own. Vague order would lead to further complications, because both the litigating parties may indulge in violent reactions in order to claim that they are in possession of the property in dispute.

No other argument is advanced by the Counsel for the petitioner.

Since, no jurisdictional error could be pointed out by the Counsel for the petitioner, accordingly, the orders dated 13-3-2020 passed by 1st Add. District Judge, Mugawali, Distt. Ashoknagar in M.C.A. No. 2/2018 and order dated 10-4-2018 passed by 3rd Civil Judge Class 2 Mungawali, Distt. Ashoknagar in C.S. No. 65A/2017 are hereby affirmed.

The petition fails and is hereby dismissed in limine.