NOORMOHAMMAD BHUREKHAN Vs. MASIDKHAN CHANDKHAN

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of the Constitution of India, the petitioner, who is defendant in Civil Suit No. 1/22/90, pending in Court of Civil Judge Class II, Badnagar, District Ujjain, challenges order dated 19 -3 -1991 passed by First Additional Judge to the Court of District Judge, Ujjain, whereby he partly modified the order dated 26 -4 -1990 granting injunction in favour of the petitioner defendant and directed that the order dated 264 -1990 passed by the Trial Court in favour of the defendant shall be applicable only in respect of l/3rd share of the suit land situated at Bhaisalakalan and the plaintiffs shall be able to keep their possession over 2/3rd of the land.

(2.) THE respondents Nos. 1 and 2, who are plaintiffs in the suit, filed suit for permanent injunction against the petitioner -defendant and pro forma defendant State of M.P. praying for perpetual injunction restraining petitioner defendant Noormohammad from interfering with their possession over Section Nos. 17, 18 and 19 area respectively 0.199, 3.480 and 0.376 hectares total area 4.055 hectares, land revenue 23.50. Both the plaintiffs and the defendant filed application for temporary injunction praying for restraining respectively the other party from interfering with the possession over the suit land of the respective applicants. The Civil Judge, Class II, Badnagar by order dated 26 -4 -1990 rejected the application of the plaintiff, but granted the application of the defendant petitioner and restrained the plaintiff from interfering over the lands situate at Bhaisalakalan described in the order. In appeal the learned Additional District Judge modified the order as already stated above.

(3.) SHRI B.L. Pavecha, learned counsel for the petitioner submitted that the lower appellate Court, Additional District Judge, Ujjain, upheld the finding of the trial Court that prima facie the respondent No. 1, Noormohammad, the present petitioner, was in physical possession of the disputed land. Having so held the learned Additional District Judge was in legal error in modifying the injunction granted in favour of the petitioner by the trial Court on the ground that granting of injunction on the strength of mere possession is an outmoded concept. He also erroneously placed reliance on the Supreme Court decision referred to in the order i.e. Gangabai v. Sitaram, AIR 1983 SC 742 and judgment of this Court in Chandan Singh v. Jairam Singh, 1986 MPWN (1) 116. Proceeding further Shri Pavecha submitted that the petitioner was in settled possession of the disputed land and, therefore, temporary injunction as granted by the trial Court ought to have been upheld and should not have been modified. In support of his contention Shri Pavecha relied on the following decisions Krishnaram v. Mrs. Shobha, AIR 1989 SC 2097; Yeshwantsingh v. Jagdish Singh, AIR 1968 SC 620 and Munshiram v. Delhi Administration, AIR 1968 SC 620.