Sakharam alias Bagad S/o Shivcharan Govara vs State of M.P.

This petition filed under Article 227 of the Constitution takes exception to the order dated 22-12-2016 passed in MCA No.1900047/16 by the learned District Judge, Raisen.

The petitioner/plaintiff filed a suit for declaration of title, permanent injunction and possession. In addition, an application under Order 39 Rule 1 and 2 of CPC was filed for grant of temporary injunction. The trial Court by order dated 27-07-2016 (Annexure P/4) injuncted the respondent/defendant to raise construction on the suit land (Khasra No.4/2). Aggrieved, respondent/defendant filed an appeal under Order 43 Rule 1 of CPC which was decided by impugned order dated 22-12-2016 by the Court below.

Shri Guljar Rajput, learned counsel for the petitioner criticized this order by contending that the report of Patwari (Page 35) shows that the petitioner has a prima-facie case. The Panchnama (Page 36) dated 18-06- 2016 also shows that the petitioner has a prima facie case and hence it is prayed that impugned order may be set aside and order of trial Court aforesaid be maintained.

Prayer is opposed by Shri Shrivastava, learned counsel for the other side.

I have heard the parties at length and perused the record.

The trial Court restrained the defendant from raising construction in land Khasra No.4/2. This injunction was confined to certain portion of land described in Para 14 of the order of trial Court. The Lower Appellate Court applied the basic test for grant of injunction namely availability of prima facie case, balance of convenience, irreparable loss etc. The Court below opined that the correct situation/position of land can be determined only after recording evidence of the parties. Till such time, there is no clinching material on record to ascertain the position of the land. In that case, as per Court below, if defendant is restrained from raising construction, the cost of construction will enhance, the material kept by him for construction will get spoiled. This may cause an irreparable loss to the other side. To strike a balance, the Court below opined that interest of justice would be met if a conditional permission is granted to the defendant to raise construction subject to the condition that if suit is decreed against him, he will remove the construction on his own cost. In addition, the learned Appellate Court directed the defendant to file an undertaking of this nature before the trial Court alongwith a bond and surety of Rs.5 lacs.

In the opinion of this Court, the Court below has taken a plausible view which is neither without jurisdiction nor perverse in nature. There is no procedural impropriety in the decision making process adopted by the Court below. In this view of the matter, no interference is warranted by this Court in exercise of jurisdiction under Article 227 of the Constitution. More so, when the Court below has taken care of the interest of the plaintiff and passed a conditional order because of which if plaintiff ultimately succeeds, her right will be protected. For these reasons, interference is declined.

The petition is dismissed. No cost.