KEDAR PRASAD MISHRA Vs. DADAN PRASAD MISHRA

JUDGEMENT

(1.) THE respondent No. 1 initiated a civil action forming the subject-matter of Civil Suit No. 36-A/2001 before the learned Third Civil Judge Class-II, Satna against the petitioners and the respondent Nos. 2 to 16 for declaration of right, title and interest for permanent injunction on the foundation that he has perfected his title by prescription in respect of area admeasuring 2. 09 acres situate at Khasra No. 427 and area admeasuring 0. 35 acres situated at Khasra No. 428, mouja-Jaitwara, area admeasuring 2. 49 acres Khasra No. 645 of mouza Hatiya, Tehsil Raghuraj Nagar. An application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed before the Court below seeking temporary injunction. The said prayer was resisted by the respondent No. 2 on the base that the disputed lands were ancestral property and the plaintiff in collusion with the Patwari has mutated his name in a forged manner which has been assailed before the competent revenue. The question of possession was totally disputed.

(2.) THE present petitioners who are respondent Nos. 16 and 17 filed a written statement stating, inter alia that the property was mortgaged with the predecessors in interest of the respondent Nos. 2 to 14 which was subsequently came to be possessed by the respondent No. 16 on payment of money and presently the respondent No. 1 and petitioners came to be in joint possession of the property during the life time of one Bhaiyalal. The sole ownership as claimed by the respondent No. 1 has also been disputed. It was also putforth that the plea of adverse possession was totally incorrect and in fact, no right, title and interest flowed in favour of the plaintiff. The Court of first instance came to hold that the plaintiff had not prima facie been able to establish possession for more than 12 years and hence, an injunction was not to be granted in his favour as there was no prima facie case. The learned Trial Judge also recorded that the plaintiff has failed to prove irreparable injury and balance of convenience did not accrue in his favour. Against the aforesaid order the plaintiff-petitioner preferred a Misc. Civil Appeal No. 69/2002 which came to be disposed of by the learned First Additional District Judge, Satna, vide impugned order dated 18-9-2003 came to hold that the plaintiff has got settled possession and, therefore, he was entitled to interim injunction. Being of this view he dislodged the order passed by the Court of first instance and directed the respondent Nos. 2 to 16 and the present petitioners not to interfere in his possession. The said order is the subject-matter of assail in the present writ petition.

(3.) DESPITE service of notice there has been no appearance by the plaintiff-respondents.