e s'iMRt ? iR?KV 'iltiuix pc-1'^ ':>' IN THE HIGH CQURT OF JUDICATURE, AT BILASPUR CHHATTISGARH PFJIQUE^ APPEttAW-T (Plaintiffs/ Applicants) ^^ .^y ^/^/ ^ /^ ^:^ ~\ ^•' ^ ig^,' W.P.227 NOJf25of 2010 :—/1.Lachhmi Narayan S/o Makund Keshav aged 23 years. 2. Narayan S/o Makund Keshav 16 years, being minor through her mother Smt. Kamla Bai Wd/o Makund Keshav aged 62 years. ^3. Gomti alias Neesha D/o Makund Keshav aged 25 years ^4. Mithlesh S/o Makund Keshav aged 30 years ^ 5. Smt. Kamla Bai Wd/o Makund Keshav aged 62 years. All R/o Katghora Tehsil Katghora District Korba ( C.G). VERSUS RESPONDENTS:- (Non-Applicants) Defendants /l. Smt. Rambha Bai W/o Vijay Shanker Pandey aged 59 years /I. Pramod Kumar S/o Vijay Shanker aged 38 years. ^3. Pappu alias Rajesh S/o Vijay Shanker Pandey aged 35 years -/4. Tampu alias Gouri Shanker S/o Vijay Shanker aged 33 years. 5. Girja Shanker S/o Vijay Shanker aged 30 years ^s^ ^6. Vijay Shanker Pandey W/o Dwarika Prasad Pandey aged 65 yesu-s. AU R/o Katghora Tehsil Katghora District Korba (C.G). 7. State of Chhatisgarh through Collector Korba. WRIT PETITION UNDER ARTICLE 227 OF_THE CONSTITUTION OF INDIA ^^_J^EARIICULABS-CkB-aMu? __liBjnn»a»' HIOH COURT OF CHHATTISGARH : BILASPUR Sinate Bench: Hon'bte Shri Manindra Mohan Shrivastava. J. WRTT PETmON (2271 N0.1127/2010 Lachhmi Naraywi and others (Plamtifls/Aw'icante) Respondents (Non-applicants) Defendante Versus Smt Rambha Ba and olhere Writ Palitfon under Artfcte 227 of the ConsUtutkm of India Presenfc- Shri S. N. Nande, counsel tof the petittoner. Shri Sanjeev Agrawal, Panel Lawyer for the State. CTtAILORDER (Passed on this 291n day of Mareh, 2010) This petiUon under Artfcte 227 of the Constitulfon of India hw been fited by the petitroners/plainBffe aggrieved by onter dated 11-02-2010 passed by the AddiUonal District Judge, Kalghora, Korba in M.C.A.No.010009 (Annexure A-1), whereby alowing the appeal, order of temporatfy ir^incdon granted on 27-03-2009 by the trial Court in tevour of the petitioners/plarintifls has been reversed and application for grant oftemporary injunctfon is rejectad. (2) Petitkmers/ptaintifl's (ited a suit for declaration of titte amd permanent injunctton in respert of the land ad-measuring 0.03 Acre in Khasra No.342/8 (Kha), 343/3(Kha), Halka No.25, Tehsil Katghora on the ptoadings thsrt the land in dispute originaUy betonged to Kustrat Prasad and his son Mutamd Keshav succeeded to the property. PlainBff-Kamla Bai is the wktow <rf htokund Keshav whereas Laxmi Narayan, Gomti and Mithitesh are sons and daughter <rf Mukund Keshav. Defendant-Rambha Bai fateely claimlng harself to be the daughter <rf Kushal Prasad got her name mutated in the revenue records wtthout any notfce '../ -2.' ,-ss\, to ths plaintiff. It was pteaded that the defendante are raising construcUon over the disputed ptot.and therafore, applicaUon under Order 39 Rutos 1 & 2 of C.P.C. was ateo fitod for grant of temporaiy injunctfon restraining defendants from entering upon property in dispute as ateo from demolishing/raising new constructfon. (3) The case of the defendants has been that Kushal Prasad aid TrMoki Bai had a son Mukund Keshav and a daugMer-Rambha Bai. Ater death of Kushal Prasad, property in dispute was mutated in the name of Mukund Keshav and Triloki Bai. Mukund Keshav and Triloki Bai died in the year 1994 where attw the name of plaintifls and defendant-Rambha Bai was mutated in the revenue records in the year 1995. The property in disputs came to the share of defendant Rambha Baiupon partiUon, on which basis, the name of the ptaintiff was mutated on 14-09-1998 on the property in dispute. PlaintifTs son !s ruiming business cf sales of cassettes. The order passed in mutertfon was never chaltenged in appeal, and therefor®,the same attained firKiltty. The property tax was also being paid bythe defendants. (4) The leamed Irial Court vMe ite order dated 27-03-2009 granted injuncUon in favour of the plainBffis restraining defendants from raising new construction. Aggrieved by the said order, respondents/ctefendants preferred an appeal and the teamed tower appeltate Court vkte impugned order ctetedl 1-02-2010 has allowed the appeal, sdtUng aside the order passed by the Irial Court and rejecUng the plaintiffs applfeation for grant of temporaty iiyjnctron. (5) /tesailing the order passed by the appeltate Court, teamed counsel for the peUttonere aigued that the defendant-Rambha Ba did nrt have prima (acie dtte in respect of the suit property, and after death of Kushal Prasad and Triloki Bai, ^•^ssss^'«!?°•. ,..-2^ ht f^ .ri^^^ft. t ^ ~w JQ ^ <^. i7'} entire property devolved upon Mukund Keshav to the exdusion of defendant- Rambha Bai. It is also submitted that the teamed trfeil Court righUy granted temporary injunctron as the petitlonere/plaintilfe made out a prima (acie case, balance of convenience was in their tavour and if the in^inctfon is not granted, they would sulfer irreparable injury. tt is contended that the toamed tower appellate Court committed gross error in setBng aside the order passed by the leamed trial Court granting temporaiy injuncSon and committed serious juriscfictional error in overiooking important facts on record. It has also been submitted that the learned kwer appellate Court yossly erred m appreciating the factual and tegat avennents of the plaint and wrongly hekl that no prima isx case was made out. Further submissfon is thatlhe teamed lower appellate Court grossly erred in appredaBng documents filed by the plalntiflypeUUoner and overiooked record of rights reflecting excluswe titte cf Mukund Keshav. (6) From the order passed by the leamad hnrer sypeNate Court, it fe fbund that the appellate Court taking into consktefafion the revenue record <rf rights i^aSngto the property in disputs recorded a finding that after partiUon the land in (fispute was recorded in the name of Rambha Bai in the year 1998. The teamed lower appeBate Court ateo consktered that ttie name of Rambha Bai was mutated in respectofthe propertyin dispirte, after partitfon and on the basis of no obBecUon certificate by Kamla Bai and in the presence <rf Kamta Bai, wictow of Mukund Keshav and one Ganesh Das. The leamed lower appellate Cwirt ateo considered that the proceedings relating to partiUon were not chaltenged in Revenue Court. tt has ateo been consktered that the plaintiffe have ptaced on record aflklavits of Kunjmafi, PhoolmaB and Juggi Bai to show that Rambha Bai was not the daughter of Kushal Prasad and not the sister of Mukund Keshav but have not stated her parentage. The teamsd tower appellate Court also ^gSKBl-;,,''^.- "1/~""^.. \ i;'^p^ i,, ^ n»^- 'Ni- ^ (^ considered the transfer certiflcate of school of Rambha Bai cf Chass-11 whteh prows that Rambha Bai fe the daughter of Kustal frasad and Tritoki Bai. The appeltate Court took into consideration that as the partNion was without any objectkm.therefore, tWs might be a reason for not diallengjng the same befbre any Revenue Court. Taking into consktoratfon the order passed by the Tehsildar, l^rtghora in Rewnue Case No.2/A-7Q/2008-2009, map attadied with the plaint, it has also been recorded that defendant-Rsmbha Bai and her sons are in possession <rf the property in dispute. Taldng htto consktoration the aforesaid material and cireumstances, ttie teamed lower appeNate Court arrived at a conclusfon that the defendant-Rambha Bai and her sons are in possessfon of the property !n dispute before and after partitfon. The document on record prima feusie shows their possession to be valid and not as an encroacher. The teamed kwer appellate Court ateo took into consideratton that the permfesfon was obtamed from Nagar Panchayat for demolishing the house. TaMng intD consideration ttiat even if any construcfion is raised, in case, if tt is found that the plaintifls are entiUed to ctecree, they will be enfitted to property in dfepute along with <he new construction. (7) The teamed tower appellate Court thus anwed at a conclusfon that in vtew of the material on record, plaintiff has faitod <D make out a case <br grant of InjuTction. On the contraiy, Vtw wder of tnjunctfon passed t^f the trial Court, if atlowed to continue, the drfendants who obtatoed the property in dispute in partitkm, woirid be deprived of its enj^ment. (8) In the opinron <rf thfe Court, the teamed loww appellate Court has netther committed any jurisdicUonal error nor any perversity in passing the impugned order. This Court does not find that the appeltate Court has recorded any <r perverse flnding or applied wholty incorrect principtes <rf law in the matter of giarrt of temporaiy ii^unctwn. Prima ftcte view vtWh regard to defendant's possession doas not sutfer from any gross or apparent error of taw resuUing in manifest injusfice. In tWs view of the matter, in my opmion, no case for interterence in exereise of supervjsoiy jurisdictfon under Articte 227 of the ConstituUon of India is made out. ConsequenUy, the peUtion is summarily dismlssed without notice to othw pariies._ .- -—- i Manindra ^nSh"v^ava Judge TUmane