GURMEET SINGH SOKHI Vs. SUBHASH MALLIK

JUDGEMENT

(1.) BEING aggrieved by the order dated 3-11-2004 passed by Vth Addl. District Judge, Bhopal in Civil Suit No. 37-A/2004, whereby the application for grant of temporary injunction filed by the respondent No. 1 under Order XXXIX Rules 1 and 2, Civil Procedure Code has been allowed, the present appeal has been filed.

(2.) SHORT facts of the case are that the respondent No. 1 filed a suit for declaration, possession and permanent injunction alleging that the respondent No. 1 is in occupation of the suit property since last more than 30 years and on the basis of adverse possession, the respondent No. 1 has become the Bhumi Swami of the suit property as having the hostile title. It was, alleged by the respondent No. 1 that the land bearing survey No. 173 was in two parts in the revenue record, i. e. , 173/1 and 173/2. The survey No. 173/1 measuring 1. 17 acres was recorded in the name of Madhya Pradesh Industries Ltd. , Bhopal and survey No. 173/2 measuring 11. 56 acres was recorded in the name of Industries Department. It was alleged that out of 1. 17 acres of land which is bearing survey No. 173/1 and which was transferred to M. P. Industries Ltd. , the respondent No. 1 was in occupation of 0. 95 acres amounting to 41382 square feet of land since 1967- 1968 peacefully within the knowledge of respondent No. 2. It was further alleged that out of this land mentioned hereinabove, respondent No. 1 is encroacher on a part of the land measuring 21850 square feet of land of 0. 95 acres. The possession of respondent No. 1 has been removed by the Tehsildar (Nazul) Bhopal in the proceedings under Section 248 of M. P. Land Revenue Code (which shall be referred hereinafter to 'the Code') holding that the respondent No. 1 is a trespasser. It was alleged that since the title of the respondent No. 1 is based on hostile title, therefore, the respondent No. 1 has become owner of the suit property and is entitled for possession. It was further alleged that since the appellant is initiating the construction activities over the suit property, therefore, the appellant be restrained to raise any construction and the appellant be directed to maintain status-quo.

(3.) THE application for temporary injunction filed by the respondent No. 1 was opposed by the appellant alleging that the suit property has been leased out to the appellant vide lease agreement dated 13-3-1999. The appellant has paid a premium and after obtaining the permission from the Municipal Corporation, Bhopal on 15-4-2002 and also after obtaining the possession on 23-9-2004, the appellant is developing the suit property for starting the industry and since the appellant is in legal possession of the suit property on the date of filing of the suit, therefore, the appellant can not be restrained from raising the construction.