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BAIJNATH SHARMA V/S SHASHKIYA KARAMCHARI GRAH NIRMAN SAHKARI SAMITI, decided on Tuesday, September 2, 2014.
[ In the High Court of Madhya Pradesh, M.A. No. 604 of 2014. ] 02/09/2014
Judge(s) : ROHIT ARYA
Advocate(s) : A.K. Nirankaari. .........................
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  "2014 AirCC 3053"  ==   ""  







    Civil Procedure Code 1908 - Order 39 Rule 1 Rule 2 -     Rohit Arya J:1. This appeal under Order XLIII Rule 1(r) of CPC is preferred against the order dated 15/4/2014 passed in Civil Suit No. 5-A/2013 by First Additional District Judge Sheopur. By the aforesaid order the application preferred by the plaintiffs under Order XXXIX Rule 1 and 2 CPC has been rejected.2. Facts necessary for disposal of appeal are to the effect that plaintiffs have filed a suit for declaration and permanent injunction in respect of suit land ad-measuring 40x 90 sq. ft. part of survey No. 284 and 285 in Tahsil Sheopur inter alia contending that though lands falling in aforesaid survey numbers are government lands but since the time of their father the suit land has been in their possession where a house has been constructed and garden has also been developed. Plaintiffs claimed to be in possession of suit land for last 30 years continuously peacefully and uninterruptedly to the knowledge of defendants/State as such have perfected their title by adverse possession. It is further pleaded that defendant No. 1 has illegally executed the sale deed dated 17/12/2009 in favour of defendant No. 2.3. During pendency of the suit by filing an application under Order XXXIX Rule 1 and 2 CPC the plaintiffs alleged that defendant No. 2 with the help of anti social elements trying to forcefully dispossess them and therefore they sought relief of temporary injunction against defendants in respect of suit land that defendant No. 2 be restrained from interfering with the possession of the plaintiffs over the suit land.4. Defendants No. 1 and 2 have filed reply to the aforesaid application and denied allegations made therein. It is submitted that vide Collector's order dated 22/4/2002 passed in Revenue Case No. 1/01/02/A-19(4) land admeasuring 23 Bigha has been allotted to defendant No. 1-Society and NOC has also been issued by SDO and after diversion the land has been diverted and developed for construction of government employees' quarters. Building maps have also been sanctioned by Municipal Council Sheopur. As a matter of fact wife of plaintiff No. 2-Sushila Devi has raised a construction over an area of 750 sq. ft. of land adjacent to land allotted to the society. It is denied that plaintiffs are in possession of the suit land as alleged. The sale deed dated 17/12/2009 in favour of defendant No. 2 has been executed in respect of land out of the area allotted to the society as defendant No. 2 is a member of Society and he is in possession of the suit land. With the aforesaid pleadings it is prayed that application under Order XXXIX Rule 1 and 2 filed by the plaintiffs be rejected.5. Defendants No. 3 to 6/State have also filed separate reply submitting that alleged possession over the 750 sq. ft. of the land by the wife of plaintiffs No. 2 is illegal as she has encroached upon the government land. She shall be dispossessed from the aforesaid land after following due process of law. It is denied that plaintiffs are in possession of the suit land for last 30 years. It is further submitted that the land ad-measuring 23 Bigha has already been allotted to the society by the orders of competent authority. The plaintiffs shall be dispossessed from the suit land by due process of law.6. With the aforesaid pleadings on record trial Court while considering the application under Order XXXIX Rule 1 and 2 CPC addressed upon three fold settled principles. It has been found that claim of the plaintiffs that they are in possession of the suit land ad-measuring 40x 90 sq. ft. a part of survey No. 284 and 285 for last 30 years is not supported by any documentary evidence viz. khasra entries or other documents showing the possession of plaintiffs over the suit land as such prima facie it has been found that plaintiffs are not in possession of the suit land for last 30 years.7. In para 7 of the order trial Court has discussed revenue documents as regards details of land allotted to defendant No. 1 by the order of Collector dated 22/4/2002 ad-measuring 23 Bigha 11 Biswa and defendant No. 1 is found in possession thereof. Further by registered sale deed dated 17/12/2009 the defendant No. 1 has executed a sale deed to it's member defendant No. 2 and delivered the possession in respect of the land ad-measuring 139.44 sq. mt. out of the aforesaid allotted land. As such trial Court found that the land falling in survey Nos. 284 and 285 are the government land and the claim of plaintiffs to have any right title or interest over the suit land is not established for want of evidence much less documentary evidence. Hence it is concluded that plaintiffs have failed to establish that they are in possession of the suit land of 1500 sq. ft. The reference of some communication between Collector and the Principal Secretary with reference to certain part of land of survey Nos. 284 and 285 for which application has been filed by one Jagdish Prasad Sharma plaintiffs tried to establish that suit land is in their possession on the premise that in the aforesaid communication it is also mentioned that as per Tahsildar Jagdish Prasad Sharma is in possession of some part of the land and since plaintiffs are brothers of Jagdish Prasad Sharma they have right to maintain the suit on the premise that suit land is in their possession. But there is nothing on record that suit land at any point of time was allotted to either Jagdish Prasad Sharma or plaintiffs. As regards possession of plaintiffs the trial Court as mentioned above has found that there is no documentary evidence on record. Moreover Jagdish Prasad Sharma himself is not a plaintiff therefore plaintiffs cannot claim any right on the strength of aforesaid documents.8. On aforesaid critical analysis of facts trial Court has found that neither prima facie case is made out in favour of plaintiffs nor balance of convenience is lies in their favour. Accordingly it is also found that no irreparable loss will be caused to the plaintiff if their application under Order XXXIX Rule 1 and 2 CPC is rejected and therefore trial Court has rejected the application. However trial Court has observed that as defendants/State has submitted that plaintiffs are in illegal possession of 750 sq. ft. of land and raised a house over it thereby making an encroachment they shall not be dispossessed without due process of law. To that extent trial Court has issued an order protecting the possession of the plaintiffs as mentioned above.9. Having gone through the order impugned this court is of the opinion that trial Court was justified having rejected application under Order XXXIX Rule 1 and 2 CPC. No illegality or jurisdictional error is found in the order so passed. Appeal sans merits is hereby dismissed.Appeal dismissed.Rohit Arya J:1. This appeal under Order XLIII Rule 1(r) of CPC is preferred against the order dated 15/4/2014 passed in Civil Suit No. 5-A/2013 by First Additional District Judge Sheopur. By the aforesaid order the application preferred by the plaintiffs under Order XXXIX Rule 1 and 2 CPC has been rejected.2. Facts necessary for disposal of appeal are to the effect that plaintiffs have filed a suit for declaration and permanent injunction in respect of suit land ad-measuring 40x 90 sq. ft. part of survey No. 284 and 285 in Tahsil Sheopur inter alia contending that though lands falling in aforesaid survey numbers are government lands but since the time of their father the suit land has been in their possession where a house has been constructed and garden has also been developed. Plaintiffs claimed to be in possession of suit land for last 30 years continuously peacefully and uninterruptedly to the knowledge of defendants/State as such have perfected their title by adverse possession. It is further pleaded that defendant No. 1 has illegally executed the sale deed dated 17/12/2009 in favour of defendant No. 2.3. During pendency of the suit by filing an application under Order XXXIX Rule 1 and 2 CPC the plaintiffs alleged that defendant No. 2 with the help of anti social elements trying to forcefully dispossess them and therefore they sought relief of temporary injunction against defendants in respect of suit land that defendant No. 2 be restrained from interfering with the possession of the plaintiffs over the suit land.4. Defendants No. 1 and 2 have filed reply to the aforesaid application and denied allegations made therein. It is submitted that vide Collector's order dated 22/4/2002 passed in Revenue Case No. 1/01/02/A-19(4) land admeasuring 23 Bigha has been allotted to defendant No. 1-Society and NOC has also been issued by SDO and after diversion the land has been diverted and developed for construction of government employees' quarters. Building maps have also been sanctioned by Municipal Council Sheopur. As a matter of fact wife of plaintiff No. 2-Sushila Devi has raised a construction over an area of 750 sq. ft. of land adjacent to land allotted to the society. It is denied that plaintiffs are in possession of the suit land as alleged. The sale deed dated 17/12/2009 in favour of defendant No. 2 has been executed in respect of land out of the area allotted to the society as defendant No. 2 is a member of Society and he is in possession of the suit land. With the aforesaid pleadings it is prayed that application under Order XXXIX Rule 1 and 2 filed by the plaintiffs be rejected.5. Defendants No. 3 to 6/State have also filed separate reply submitting that alleged possession over the 750 sq. ft. of the land by the wife of plaintiffs No. 2 is illegal as she has encroached upon the government land. She shall be dispossessed from the aforesaid land after following due process of law. It is denied that plaintiffs are in possession of the suit land for last 30 years. It is further submitted that the land ad-measuring 23 Bigha has already been allotted to the society by the orders of competent authority. The plaintiffs shall be dispossessed from the suit land by due process of law.6. With the aforesaid pleadings on record trial Court while considering the application under Order XXXIX Rule 1 and 2 CPC addressed upon three fold settled principles. It has been found that claim of the plaintiffs that they are in possession of the suit land ad-measuring 40x 90 sq. ft. a part of survey No. 284 and 285 for last 30 years is not supported by any documentary evidence viz. khasra entries or other documents showing the possession of plaintiffs over the suit land as such prima facie it has been found that plaintiffs are not in possession of the suit land for last 30 years.7. In para 7 of the order trial Court has discussed revenue documents as regards details of land allotted to defendant No. 1 by the order of Collector dated 22/4/2002 ad-measuring 23 Bigha 11 Biswa and defendant No. 1 is found in possession thereof. Further by registered sale deed dated 17/12/2009 the defendant No. 1 has executed a sale deed to it's member defendant No. 2 and delivered the possession in respect of the land ad-measuring 139.44 sq. mt. out of the aforesaid allotted land. As such trial Court found that the land falling in survey Nos. 284 and 285 are the government land and the claim of plaintiffs to have any right title or interest over the suit land is not established for want of evidence much less documentary evidence. Hence it is concluded that plaintiffs have failed to establish that they are in possession of the suit land of 1500 sq. ft. The reference of some communication between Collector and the Principal Secretary with reference to certain part of land of survey Nos. 284 and 285 for which application has been filed by one Jagdish Prasad Sharma plaintiffs tried to establish that suit land is in their possession on the premise that in the aforesaid communication it is also mentioned that as per Tahsildar Jagdish Prasad Sharma is in possession of some part of the land and since plaintiffs are brothers of Jagdish Prasad Sharma they have right to maintain the suit on the premise that suit land is in their possession. But there is nothing on record that suit land at any point of time was allotted to either Jagdish Prasad Sharma or plaintiffs. As regards possession of plaintiffs the trial Court as mentioned above has found that there is no documentary evidence on record. Moreover Jagdish Prasad Sharma himself is not a plaintiff therefore plaintiffs cannot claim any right on the strength of aforesaid documents.8. On aforesaid critical analysis of facts trial Court has found that neither prima facie case is made out in favour of plaintiffs nor balance of convenience is lies in their favour. Accordingly it is also found that no irreparable loss will be caused to the plaintiff if their application under Order XXXIX Rule 1 and 2 CPC is rejected and therefore trial Court has rejected the application. However trial Court has observed that as defendants/State has submitted that plaintiffs are in illegal possession of 750 sq. ft. of land and raised a house over it thereby making an encroachment they shall not be dispossessed without due process of law. To that extent trial Court has issued an order protecting the possession of the plaintiffs as mentioned above.9. Having gone through the order impugned this court is of the opinion that trial Court was justified having rejected application under Order XXXIX Rule 1 and 2 CPC. No illegality or jurisdictional error is found in the order so passed. Appeal sans merits is hereby dismissed.Appeal dismissed.