KRISHNA AGRAWAL Vs. SANTOSH SHUKLA

JUDGEMENT

(1.) Petitioners have filed the present petition challenging order dated 23/01/18 contained in Annexure P/1. By the said order, Appellate Court set aside grant of temporary injunction in favour of petitioners.

(2.) Petitioners were plaintiffs before the trial Court. Plaintiffs had filed an application under Order 39 Rule 1 and 2 of Code of Civil Procedure before the trial Court. It was averred by the plaintiff that plaintiffs and defendant had entered into a lease-agreement with one Savitri Shukla in respect of land bearing khasra number 21 and 75/2, measuring total 3.230 hectares situated in Amjhar, Tehsil Kundan, District Jabalpur. It was stated by the plaintiff that lease was granted by Savitri Shukla and payment of monthly lease rent of Rs.5,000/- is to be given by plaintiff and defendant. Plaintiff and defendant entered into a partnership agreement on 3/10/1964 for a period of 12 years. Plaintiffs are in possession of land in question and defendant has not complied with the terms of partnership and paid no money. Defendant is trying to raise construction over the disputed land. In view of lease agreement dated 13/07/16, petitioner is in possession over the land in question, and if defendant raises construction over the land in question that will result in an irreparable injury and therefore he made a prayer for grant of temporary injunction. Learned trial Court consider the affidavits, documents and arguments made by the parties. It was held that Savitri Shukla has given the physical possession of land to plaintiff and defendant. Defendant has not contributed any money for starting of partnership business as per partnership deed. Lease rent is being paid by the plaintiff. There is no document on record to show that Savithri Shukla has issued any notice for cancellation of lease deed. Defendant has filed a document showing that lease deed has already been canceled. Plaintff has denied his signature on the cancellation of lease deed. In view of above, it was held by the trial Court that plaintiff has a prima facie case and he will suffer an irreparable injury if injunction is not granted in his favour and allowed the application under Prder 39 Rule 1 and 2 of CPC.

(3.) Order passed by the trial Court dated 02/08/17 passed in RCS no.065/17 was challenged in appeal under Order 43 of CPC. Learned Appellate Court held that collector has granted lease to Savitri Shukla vide order dated 20/09/11 for mining of gaitti. Mining lease was a conditional lease and as per clause 3 of the order mining is to be done by lessee Savitri Shukla and she cannot give contract to 3rd person therefore there is no prima facie case on the basis of agreement dated 13/07/16. Partnership created between plaintiff and defendant has been cancelled vide deed dated 30/04/2017. Plaintiff has denied his signature on deed dated 30/04/2017. Possession of land has been deliverd to petitioner as well as the respondent jointly. Since plaintiff and defendant are in joint possession of the land in question therefore temporary injunction cannot be granted against defendant. On the basis of aforesaid facts and circumstances of the case, order of the trial Court granting injunction in favour of plaintiff petitioner was set aside by the Appellate court.