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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Bhagi Ram - Appellant
Vs.
Ramesh Chand and others - Respondent
Civil Revision No.144 of 2022
Decided On : 19-12-2022
Code of Civil Procedure, 1908 - Order 39 Rules 1 and 2 - Order 43 Rule 1(r) – Injunction - Plaintiff claimed injunction against defendants on ground that resumption proceedings had not attained finality and, defendants had no right to use any portion of entire suit land - It is trite law that scope of interim injunction cannot be wider than perpetual injunction to which plaintiff may be held entitled (Para 10).
Findings of Court:
Plaintiff cannot be said to have a prima facie case for injuncting defendants from utilizing any part of suit land - Merely because resumption proceedings are pending before Revenue Court, valuable rights of defendants over suit land cannot be taken away - Order under challenge before Divisional Commissioner, was passed in year 2003 and after lapse of about 19 years, proceedings have not been finally decided - Balance of convenience and irreparable loss also is in favour of defendants in comparison to plaintiff - Defendants are satisfied with impugned order, whereby they have been allowed to raise construction on Khasra, keeping in view fact that defendant Ranjit Singh was intending to raise construction of a house by taking benefit under “Mukhyamantri Awas Yojna”, for which he has been sanctioned by Competent Authority - Plaintiff has taken exception even to partial modification of order passed by learned District judge.
Result: Petition dismissed.
JUDGMENT :
Satyen Vaidya, J.
By way of instant petition, petitioner has assailed order dated 08.08.2022, passed by learned District Judge, Kangra at Dharamshala in C.M.A. No. 09-D/XIV/2022, whereby order dated 21.04.2022, passed by learned Senior Civil Judge, Dharamshala in C.M.A. No. 363 of 2021, has been modified by partly accepting the appeal of the respondents herein.
2. Parties hereinafter shall be referred to by the same status as they hold before learned Trial Court. Petitioner is the plaintiff and respondents are the defendants.
3. Brief facts necessary for adjudication of the petition are that land measuring 0-34- 96 hectares comprised in old Khata No. 9, Khatauni No. 15, Khasra No. 268, vide jamabandi for the year 1971-72 was recorded in ownership of the plaintiff alongwith other co-owners and in possession of predecessor-in-interest of defendants namely Sh. Heeru as non-occupancy tenant. On coming into force of H.P. Tenancy and Land Reforms Act, 1972, plaintiff applied for resumption of land, out of old Khasra No. 268. The Land Reforms Officer allowed his resumption application to the extent of 0-04-34 hectares and such land is denoted by Khasra No. 432/268. Proprietary rights in rest of the land comprised in old Khasra No. 268 vested in the defendants and the same was described by Khasra Nos. 511/434/268 and 509/433/268. Mutations were accordingly attested and revenue records were updated.
4. Aggrieved against the resumption order passed by Land Reforms Officer, plaintiff had filed an appeal before District Collector, Kangra at Dharamshala, which was accepted and the matter was remanded back to Land Reforms Officer with the direction to decide afresh, vide order dated 24.11.2003. Defendants have assailed aforesaid order passed by District Collector, Kangra at Dharamshala, before Divisional Commissioner, Kangra and matter is stated to be still pending before said authority.
5. Plaintiff claimed injunction against defendants on the ground that the resumption proceedings had not attained finality and therefore, defendants had no right to use any portion of entire suit land. Alongwith the plaint, plaintiff also filed an application under Order 39 Rules 1 and 2 of Code of Civil Procedure, seeking relief in following terms:-
6. Learned Trial Court allowed the application of the plaintiff for interim injunction and defendants were restrained from raising any construction on entire land comprised in new Khata No.12 and old Khata No. 9, Khasra No. 268 measuring 0-34-96 hectares in Mohal-Jhikali Oder, Mauja-Oder, Tehsil Dharamshala, District Kangra, H.P. Defendants filed an appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, against order passed by learned Trial Court. Learned District Judge, vide impugned order partly allowed the appeal and vacated the injunction granted by learned Trial Court in so far as it pertains to land comprised in Khasra Nos. 509/433/268. Plaintiff has assailed the impugned order passed by learned District Judge, Kangra at Dharamshala by way of instant petition.
7. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
8. Admittedly, plaintiff has no claim on entire suit land. By way of resumption proceedings, he is claiming only a share therein. Land Reforms Officer had already allowed his resumption application by allotting him a share in the suit land. His dissatisf
Preventive relief of injunction is a discretionary relief - In order to succeed in getting a decree of perpetual injunction, plaintiff has to establish his right.
Section 36 of Specific Relief Act vests Court with power to grant injunction at its discretion.
The main legal point established in the judgment is that the resumption order under the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977, attains finality if not challenged, and the....
Relief which cannot be granted in main suit, can also not be granted by way of interim relief.
Principle of equity, which is cardinal while deciding the grant of equitable relief of injunction, has duly been considered.
The right of a co-sharer in exclusive possession of land to seek injunction against other co-sharers, and the relevance of revenue court proceedings in deciding injunction applications.
The need for a prima facie case, balance of convenience, and irreparable loss for granting injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
The court emphasized maintaining status quo in property disputes during the pendency of litigation to prevent multiplicity of proceedings.
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