KESHAV SINGH Vs. MAHENDRA SINGH

JUDGEMENT

(1.) In this petition, under Article 227 of the Constitution of India, petitioner has challenged the order dated 6.11.2019 passed in M.C.A. No.12/2017 by Fourteenth Additional District Judge, Gwalior, whereby the appeal filed by the petitioner-plaintiff against the order dated 2.1.2017 passed by Fifth Civil Judge, Class-II, Gwalior in Civil Suit No.2A/2015, has been dismissed. However, the petitioner has not challenged the order dated 2.1.2017 passed by the Fifth Civil Judge, Class II, Gwalior which is Annexure P/6.

(2.) Necessary facts for adjudication of this case are that petitioner- plaintiff filed a suit for declaration and permanent injunction and for declaring the sale deed dated 19.5.2019 to be null and void along with an application under Order 39 Rules 1 and 2 CPC seeking temporary injunction regarding 1/2 share bearing total area 0.298 of land bearing Survey No.200 area 0.084 hectare, Survey No.201 area 0.031 hectare, Survey No.202 area 0.021 hectare, Survey No.203 area 0.199 hectare, Survey No.204 area 0.261 hectare, total kita 5 and total area 0.596 hectare situated at Village Veerpur, Halka No.37, Tehsil and District Gwalior in which 1/2 share of the land i.e. 6 biswa is in dispute which has been purchased by the respondents for a consideration of Rs.1,50,000/-. It was pleaded that the petitioner- plaintiff is having exclusive possession over the disputed property, therefore, he had no option but to file the application under Order 39 Rule 1 and 2 of CPC praying therein that the respondents may be injuncted from interrupting in the peaceful possession of the petitioner and also directed not to dispossess the petitioner from the suit land or alienate the property.

(3.) The Trial Court in its order dated 2.1.2017 had come to the conclusion that prima facie the plaintiff has not been able to prove that he is in possession of the disputed land. Since the plaintff is not in possession, so there is no question of irreparable loss being caused to him, and therefore, balance of convenience is also not in his favour.