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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Jyotsna Rewal Dua, J.
VIDYA DEVI AND OTHERS — Appellants
Vs.
MELA RAM AND OTHERS — Respondents
Civil Misc. Petition Main (Original) No. 464 of 2016
Decided On : 30-11-2021
Order 39 Rule 1 & 2 - Property Dispute - The court dismissed the plaintiffs' application for temporary injunction under Order 39 Rule 1 & 2 of the Code of Civil Procedure. The plaintiffs claimed ownership of a portion of the land and sought to declare certain mutations and sale deeds as illegal. The court found that the plaintiffs failed to provide sufficient evidence to support their claim and did not demonstrate the balance of convenience in their favor. The court also noted that the plaintiffs concealed relevant information in their application.
Fact of the Case:
A suit was filed by the plaintiffs for declaration of ownership of a portion of land and to declare certain mutations and sale deeds as illegal. The plaintiffs claimed that their father had purchased the land in 1963, but failed to provide supporting documents. The defendants claimed ownership based on mutations and sale deeds.
Finding of the Court:
The court found that the plaintiffs failed to provide sufficient evidence to support their claim of ownership and did not demonstrate the balance of convenience in their favor. The court also noted that the plaintiffs concealed relevant information in their application.
Issues: Ownership dispute, validity of mutations and sale deeds, application for temporary injunction under Order 39 Rule 1 & 2 of the Code of Civil Procedure.
Ratio Decidendi: The plaintiffs were required to show a prima facie and arguable case in their favor, demonstrate the balance of convenience, and prove irreparable loss and substantial injury to succeed in the application for temporary injunction. The court found that the plaintiffs failed to meet these requirements.
Final Decision: The court dismissed the plaintiffs' application for temporary injunction under Order 39 Rule 1 & 2, stating that the plaintiffs failed to provide sufficient evidence to support their claim and did not demonstrate the balance of convenience in their favor. The court also noted that the plaintiffs concealed relevant information in their application.
ORDER :
1. Both the learned Courts below have dismissed the application moved by the plaintiffs under Order 39 Rule 1 & 2 of the Code of Civil Procedure. In the aforesaid background, the plaintiffs have preferred the instant petition under Article 227 of the Constitution of India.
2........
(ii) The foundational facts pleaded for the aforesaid reliefs are that one Devi Singh, son of Kanahiya was owner in possession of the suit land. He sold this suit land to Sh. Budh Ram-the father of plaintiffs and proforma defendants in the year 1963 for a sum of Rs. 10,000/- Sh. Budh Ram accordingly came in possession of the suit land and after his death, plaintiffs alongwith proforma defendants have been cultivating the suit land.
Defendants No.1 is the son and defendant No.2 is the widow of late Sh. Changa son of Sh. Kanahiya. Defendants No.1 and 2 were not related to Sh. Devi Singh in any manner. Mutation No. 403 of inheritance of late Sh. Devi Singh attested in favour of defendants No.1 and 2 with respect to the suit land was illegal. The sale deed No.362 dated 06.04.2002 executed by defendants No.1 and 2 in respect of sale of suit land in favour of defendants No.3 and 4 was also inoperative and not binding upon the plaintiffs.
(iii) The defendants took up the stand that their predecessor in interest namely Sh. Changa alias Devi Singh had purchased the suit land alongwith Sh. Mangat Ram, Sh. Kishan Lal and Sh. Budh Ram. The land thereafter was partitioned and suit land was allotted to Sh. Changa alias Devi Singh. After the death of Devi Singh, defendants No.1 and 2 became the owners of the same. They further pleaded that the question of possession and title with respect to the suit land had already been decided between the parties in Regular Second Appeal No.472/2001 decided on 10.03.2010.
(iv) Learned trial Court vide order dated 26.03.2015 as corrected on 27.05.2015, dismissed the application under Order 39 Rule 1 and 2 CPC. This order has been affirmed by the learned First Appellate Court on 22.08.2016.
3. After hearing learned counsel for the parties, I am of the considered view that there is no error in the impugned orders passed by the learned Courts below:-
(ii) In RSA No.472/2001, defendants No.1 and 2 have been held to be in possession of the suit land. Mutation No.403 with respect to the suit land has been attested in favour of defendants No.1 and 2. On the strength of their being owner in possession, defendants No.1 and 2 have executed the sale deed No. 362 on 06.04.2002, in favour of defendants No.3 and 4.
(iii) In order to succeed in the application for grant of temporary injunction, the plaintiffs were required to show not only the existence of a prima facie and arguable case in their favour, but they had also to demonstrate the balance of convenience in their favour and that an irreparable loss and substantial injury shall be caused to them, in case of refusal of the relief of temporary injunction. The plaintiffs may have an arguable case
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