Full Judgment
1 M.A. 2051/2012 HIGH COURT OF MADHYA PRADESH JABALPUR SINGLE BENCH: HON'BLE SHRI JUSTICE A.K. SHRIVASTAVA M.A. No.2051/2012 .........Appellant: Manot Singh, S/o Shri Rajendra Singh, Occupation Private Service, R/o Villlage Shukla, Tahsil Raghurajnagar, District Satna, M.P. Versus .......Respondents:
1. Rajendra Singh 2. Ravendra Singh 3. Narendra Singh 4. Brajendra Singh No.1 to 4 are S/o Late Kripal Singh and Occupation Agriculturist, Village Shukla, Tahsil Raghurajnagar, District Satna, M.P.
5. Smt. Kamlesh Singh, W/o Shri Rajendra Singh, Occupation House Wife.
6. Balendra Singh, S/o Rajendra Singh, Occupation Agriculturist.
7. Vikram Singh, S/o Late Pradhuman Singh 8. Vanshraj Singh, S/o Late Pradhuman Singh 9. Jai Bahadur Singh, S/o Late Pradhuman Singh 10. Smt. Hansraju Singh, W/o Late Pradhuman Singh, Occupation House Wife.
11. Kamlendra Singh, S/o Late Kripal Singh, Occupation Agriculturist. No.5 to 11 are R/o Village Shukla, Tahsil Raghurajnagar, District Satna, M.P.
12. State of M.P. Through its Collector, Satna, District Satna, M.P. --------------------------------------------------------------------------------------- 2 M.A. 2051/2012 Appellant by - Shri Arvind Shrivastava, Advocate Respondents by - Shri B.K. Singh, Advocate --------------------------------------------------------------------------------------- ORDER
(08/10/2012) This appeal under Order 43 Rule 1(r) of CPC has been filed by the plaintiff against the order dated 2.5.2012 passed by learned IV Additional District Judge, Satna in Civil Suit No.131A/ 2011 whereby his application under Order 39 Rules 1 and 2 CPC has been rejected.
2. A suit has been filed for declaration that plaintiff is entitled for 1/2 share in the suit property and for partition which is pending for adjudication in the Trial Court. An application for issuance of temporary injunction has also been filed by him praying that till the suit is decided the first defendant Rajendra Singh who is plaintiff's father be restrained from alienating the suit property. This application has been opposed by defendant no.1 by filing the reply in which it has been averred that neither the plaintiff's mother is the wife of first defendant not the plaintiff is his son and thus plaintiff is not entitled for any temporary injunction.
3. Learned Trial Court although found that prima facie it is proved that plaintiff is the son of first defendant Rajendra Singh but has rejected the application of temporary injunction because 3 M.A. 2051/2012 the plaintiff has not specified the property which is going to be alienated by the respondent no.1 4. The contention of Shri Arvind Shrivastava, learned counsel for the appellant is that although in the affidavit filed on behalf of plaintiff/appellant and his witnesses the specific description of the suit property has not been mentioned but these affidavits were filed in support of the application for issuance of temporary injunction in which the description of the suit property has been very well mentioned. Learned counsel has also invited my attention to para 3 of the plaint that entire description of the suit property has been mentioned in the plaint and if that would be the position, the learned Trial Court erred in rejecting the application.
5. On the other hand, Shri Singh, learned counsel appearing for the respondent no.1/first defendant argued in support of the impugned order and submitted that plaintiff is not the son of defendant no.1 and learned Trial Court has rightly rejected the application.
6. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.
7. On bare perusal of the impugned order paras 8 and 9, it is gathered that prima facie learned Trial Court came to the conclusion that plaintiff is the son of first defendant Rajendra Singh. However, in para 10 it has been held that the description of the property against which the temporary injunction has been 4 M.A. 2051/2012 sought has not been given. Since the entire description of the suit property is given in plaint, para 3 as well as in the temporary injunction application, therefore, merely because the same description has not been reproduced in the affidavits filed on behalf of plaintiff and his witnesses would not weaken the case of plaintiff and further it cannot be said that there was no material placed before the learned Trial Court in order to reject the application holding that description of the property has not been mentioned. Apart from this, on bare perusal of the reply filed on behalf of first defendant Rajendra Singh it is gathered that he is not alienating the suit property.
8. In this view of the matter, I am of the view that learned Trial Court erred in not allowing the application of temporary injunction of the plaintiff/appellant.
9. Resultantly, this appeal succeeds and is hereby allowed. The impugned order is hereby set aside and the first respondent- defendant no.1 Rajendra Singh is hereby restrained from alienating the suit property the description whereof has been mentioned in para 3 of the plaint till the decision of the suit. No costs. (A.K. Shrivastava) Judge rao