RAJNI BAI Vs. KAMLA DEVI

JUDGEMENT

(1.) LEAVE granted.

(2.) WE have heard the counsel on both sides. This appeal by special leave arises from the order of the single Judge of the Madhya Pradesh High Court at Jabalpur Bench dated 20.1.1993 made in MA No. 337 of 1991.

(3.) ADMITTEDLY , the appellant is in possession of the property. In view of his apprehension that there is a threat to his possession, his only remedy would be whether he will be entitled to the declaration sought for. When he seeks to protect his possession, if he is otherwise entitled according to law, necessarily the Court has to consider whether protection is to be given to him pending the suit. Merely because there is no dispute as regards the corporeal right to the property, it does not necessarily follow that he is not entitled to avail of the remedy under Order 39, Rules 1 and 2 CPC. Even otherwise also, it is settled law that under section 151 CPC, the Court has got inherent power to protect the rights of the parties pending the suit. Under these circumstances, the view expressed by the High Court that application itself is not maintainable is clearly illegal and erroneous. The application under Order 39, Rules 1 and 2 is maintainable.