OMPRAKASH AGRAWAL Vs. SANDEEP KUMAR AGRAWAL

JUDGEMENT

(1.) Heard finally with the consent of both the parties. In this petition under Article 227 of the Constitution of India, the petitioners have assailed the legality, validity and propriety of the order dtd. 20/5/2022 (Annexure P/1) passed in Miscellaneous Civil Appeal No.39/2022 by the Court of III Additional Judge to I Additional District Judge, Katni (M.P.), whereby the Appellate Court has reversed the order of the learned trial Court dtd. 5/4/2022, which had rejected the application under Order 39 Rule 1 and 2 of the Civil Procedure Code (hereinafter shall be referred to as "Code") seeking temporary injunction.

(2.) Brief facts leading to filing of this case are that the respondent No.1/plaintiff filed a suit for declaration and permanent injunction against the petitioners/defendants, which was registered as RCS A/07/2022 alongwith the application under Order 39 Rule 1 and 2 of the Code. It is sated in the plaint that petitioner No.1 and respondent No.1 are real brothers and petitioners No.2 and 3 are real sons of petitioner No.1. It is also stated in the plaint that respondent No.1/plaintiff is the owner of 5111 sq.ft. of land, out of which land admeasuring 15 X 25 sq.ft. has been sold by him to Mr. Rohit Gupta and Mr. Vikas Kumar Gupta. After that only 0.045 hectares is remaining with the plaintiff. It is also averred in the plaint that petitioner No.1, who is real brother of the plaintiff has purchased the adjoining area of 0.017 hectares out of the same Khasra No.186/1. The plaintiff in support of his claim has filed Najri Naksha showing his land as ABCDEFGH and the land admeasuring 15 X 25 sq.ft. sold by him as DEIJ and the suit portion has been shown as FGKI admeasuring 26 X 35 sq.ft.. It is also averred that the petitioners/defendants on 11/2/2022 at around 12'o Clock in day have taken possession of the aforesaid plot and started demolishing the portion of land belonging to plaintiff shown as FGKI.

(3.) The petitioners entered their appearance and file reply to the injunction application stating that the suit land has wrongly been shown as owned and possessed by the plaintiff and the suit land has been purchased by the petitioners by way of registered sale deed. The matter was heard on the application for temporary injunction and vide order dtd. 5/4/2022 (Annexure P/4), the learned trial Court dismissed the application filed by the respondent No.1/plaintiff holding that Najri Naksha produced by respondent No.1/plaintiff and the one produced by the petitioners/defendants alongwith their sale deed does not make out a case for grant of injunction. Learned trial Court further held that there is no material to show that respondent No.1/plaintiff is the owner and in possession of the disputed land. Being aggrieved, the respondent No.1 challenged the aforesaid order dtd. 5/4/2022 in Appeal under Order 43 Rule 1 of the Code before District Judge, Katni. Vide the impugned order dtd. 20/5/2022, the lower Appellate Court reversed the order dtd. 5/4/2022 and allowed the application under Order 39 and Rule 1 and 2 of the Code. Being aggrieved, the present petition has been filed.