Madhya Pradesh High Court
Shri Krishna Ginning Factory Through … vs The State Of Madhya Pradesh on 16 January, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:1804
1 MA-7908-2023
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 16th OF JANUARY, 2025
MISC. APPEAL No. 7908 of 2023
SHRI KRISHNA GINNING FACTORY THROUGH OMPRAKASH
OJHA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sameer Athawale, learned counsel for the appellant.
Shri Chetan Joshi, learned counsel for the respondent/State
Shri Achal Pathak, learned counsel for the respondent [R-4].
Reserved on 16.01.2025
Pronounced on 27.01.2025
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ORDER
This miscellaneous appeal under Order 43 Rule 1 r/w section 104
of the CPC is preferred being aggrieved by the order dated 14.12.2023
(Annexure A/1) in RCS A No.400023/2017 whereby the application
filed by the appellant/plaintiff under section 151 of the CPC (Annexure
A/6) has been rejected.
2. Facts in brief are that appellant/plaintiff filed a civil suit
(Annexure A/2) seeking declaration of title, recovery of possession and
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 28-01-2025
11:03:33
NEUTRAL CITATION NO. 2025:MPHC-IND:1804
2 MA-7908-2023
setting aside the proceedings under section 182 of the M.P Land
Revenue Code, 1959 and permanent injunction regarding the land of
survey no.438, area 3.585 hectare situated at Nagda, district Ujjain
claiming the owner of suit property.
3. Appellant/plaintiff filed an application under section 39 Rule
1 & 2 CPC (Annexure A/3) seeking interim protection for house, shops
etc and change in the nature of the property and restraining from
construction and alienation of the suit property. The application was
replied by respondent no.3/defendant no.3 vide Annexure A/4 and vide
order dated 27.11.2018 (Annexure A/5) a limited interim protection was
granted to the effect that defendants/respondents shall not create any
obstruction or disturbance in the plaintiff’s possession himself or
through another persons. Thereafter on 13.12.2023 plaintiff/appellant
filed an application under section 151 of the CPC (Annexure A/6) for
restraining the respondents no.2 to 4 from dismantling the work carried
out by the plaintiff/appellant and for proper proceedings for disobeyance
of the order dated 27.11.2018 with assertion that he has not carried out
any new construction over the suit property. He has carried out only
repairing work to repair the wall cum shutter and tin sheets which were
deteriorated due to the age to avoid danger to human life or property but
defendant no.2 to 4 is claiming that the aforesaid construction is new
construction. The application was supported by affidavit of
Omprakash. The application was replied by respondents no.1 & 2
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 28-01-2025
11:03:33
NEUTRAL CITATION NO. 2025:MPHC-IND:1804
3 MA-7908-2023
through Annexure A/7 and it was specifically asserted that the
plaintiff/appellant has carried out new construction in the garb of order
dated 27.11.2018. The new construction has been carried out without
the permission of Court. They verified the fact through Panchnama
dated 09.12.2023. The plaintiff/appellant has not obtained sanction
from the local body for new construction. They have not disobeyed the
order dated 27.11.2018. The relief cannot be sought through application
under section 151 of the CPC. They have to proceed under Order 39
Rule 2A of the CPC. Respondent No.4/defendant no.4 replied the
application separately stating that no permission was taken for
construction under section 187(1) of the M.P Municipalities Act, 1961.
Even for erection, alteration, addition or reconstruction of the building
the permission is required as per section 187(3) of the M.P
Municipalities Act, 1961. No such permission has been taken. The
photographs clearly demonstrate that shops have been constructed in the
garb of repair. There was no old construction on the site.
4. After taking into consideration the rival contentions of the
parties, trial court rejected the application vide order dated 14.12.2023
(Annexure A/1) recording the finding that as per the plaint allegations
some portion of the disputed land was taken by the defendants on
02.07.2014 and plaintiff/appellant has sought recovery of the possession
and photographs filed by defendant no.4/respondent no.4 disclose that
new construction was carried out by plaintiff/appellant. There is no
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 28-01-2025
11:03:33
NEUTRAL CITATION NO. 2025:MPHC-IND:1804
4 MA-7908-2023
permission to carry out the reconstruction, repairing etc. and respondent
no.4/defendant no.4 has power to proceed under section 187(8) of the
M.P Municipalities Act, 1961 regarding such construction.
5. This miscellaneous appeal has been preferred on the ground
that bare perusal of the documents available on record made it clear that
the old construction of the shops was lying on the land of survey no.438
possessed by the plaintiff and the plaintiff has just carried out the
repairing work thereon. The trial court has passed an order of temporary
injunction at earlier point of time in favour of the plaintiff taking into
consideration the fact that the plaintiff is in possession of the land of
survey no.438 but later on it has completely failed to take in to account
the earlier application also in which the plaintiff has categorically stated
the existence of the houses, shops, go-downs etc constructed on the suit
land which was not specifically denied by the defendants in their reply.
The defendants have projected the repairing work on the spot as fresh
construction with an ulterior motive and to defeat the object of the order
dated 27.11.2018 passed by the trial court. The trial court committed
grave error in not considering the fact that the plaintiff has promptly
established the existence of old construction on the land possessed by
him. If the defendants are permitted to carry out demolition drive on the
spot during the pendency of the suit, the appellant will suffer great
irreparable loss. The trial court failed to consider that the issues raised
by the parties in the matter are seriously disputed which would be
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 28-01-2025
11:03:33
NEUTRAL CITATION NO. 2025:MPHC-IND:1804
5 MA-7908-2023
decided during the course of trial.
6. During the pendency of this miscellaneous appeal certain
photographs in the form of Annexure A/8 were filed through IA
No.9873/23 to be taken on record. Counsel for the respondents no.2 & 3
filed the objection to the appeal through document no.2526/24 referring
to the notice dated 10.12.2023 (Annexure R/1), notice dated 09.12.2023
(Annexure R/2), notice dated 11.12.2023 (Annexure R/3), Khasra
Panchshala (Annexure R/4) and the correspondence between the parties
as Annexure R/5 to Annexure R/8.
7. Heard.
8. Perused the record.
9. The first notice dated 11.12.2023 and second notice dated
12.12.2023 issued by respondent no.4/defendant no.4 are issued under
section 187(8), 223 of the M.P Municipalities Act, 1961 and appellant
replied that the nature of construction is in the form of alteration which
requires no permission. The relevant portion is being reproduced below:
यहां यह बताया जाना अित आव यक है क वाद का
लगभग 70 वष पूव क जीण शीण अव था क द वाल और शटर को
नया कया गया है वह भी कसी भी जानमाल का नुकसान न हो इस
कारण प रवितत कया है । चुक कोई नया िनमाण नह ं कया है वष
पूव के पुराने िनमाण को रपेयर का काय वाद ने अपने आिधप य क
दकु ान म कया है और इसक अनुमित लेने क कोई आव यकता भी
नह ं है ।
10. Section 187 (2) of the M.P Municipalities Act, 1961 is being
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 28-01-2025
11:03:33
NEUTRAL CITATION NO. 2025:MPHC-IND:18046 MA-7908-2023
reproduced below:
187. Notice of new buildings.–
(1) xxx xxx xxx
(2) Before beginning to erect any building, or to alter
externally or add to any existing building, or to construct or
reconstruct any projecting portion of a building in respect of
which the Council is empowered by Section 184, to enforce a
removal or set-back, the person intending so to build, alter,
add or reconstruct shall give to the Council notice thereof, in
writing and shall, of required by a bye-law or by special order
to do so furnish along with such notice a plan showing the
levels, at which the foundation and lowest floor of such
building are proposed to be laid, by reference to some level
known to the Council and all such information as may be
required regarding the limits, design, ventilation and materials
of the proposed building, and the intended situation and
construction of the drains, sewers, privies, water-closers and
cesspools, if any, to be used in connection therewith and the
location of the building with reference to any existing or
projected streets and the purpose for which the building will
be used
11. The photographs in the form of Annexure A/8 discloses that
the construction in the name of repair is substantial alteration and
appellant’s argument is prima facie not tenable that the provisions of
section 187 of the M.P Municipalities Act, 1961 do not attract in thiscase. The plaintiff/appellant has a recourse to prefer an appeal under
section 307 (1)(b) of the M.P Municipalities Act, 1961. His act is not
protected by the order dated 27.11.2018. Accordingly, trial courtSignature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 28-01-2025
11:03:33
NEUTRAL CITATION NO. 2025:MPHC-IND:18047 MA-7908-2023
committed no error in dismissing the appellant’s application under
section 151 of the CPC (Annexure A/6). Accordingly, this appeal fails
and is hereby dismissed.
(GAJENDRA SINGH)
JUDGE
hk/
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 28-01-2025
11:03:33
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