Point of Law: Under Order 39 Rule 1 and 2 of CPC, ingredients, which have to be taken by Court, are (a) prima facie; (b) balance of convenience; and (c) irreparable loss.

JUDGMENT :

Ajay Mohan Goel, J.

CMPMO No.157 of 2022 a/w CMP No.5937 of 2022

By way of the present petition filed under Article 227 of the Constitution of India, the petitioners have challenged the orders passed by the learned trial Court as well as the learned 1st Appellate Court, in terms whereof, the application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure alongwith the Civil Suit by respondent No.1/plaintiff was allowed by the learned trial Court and the appeal filed by the present petitioner against the order passed by the learned trial Court was dismissed by the learned 1st Appellate Court.

2. Brief facts necessary for the adjudication of the present petition are that respondent No.1/plaintiff (hereinafter referred to the as the plaintiff) has filed a suit for permanent prohibitory injunction pertaining to land comprised in Khewat No. 126, Khatoni No. 146, Khasra No. 70, measuring 8­01 bighas, situated at Village Niharkhan Basla, P.O. Brahampukhar, Tehsil Sadar, District Bilaspur, H.P., against the present petitioners/defendants (hereinafter referred to as ‘the defendants’), on the ground that the plaintiff is the owner of this suit land, whereas, the defendants are strangers, having no right, title or interest thereupon, but with the intent to occupy the suit land, they were threatening to create a path thereupon, without the consent of the parties. It was further the pleaded case of the plaintiff that the defendants were otherwise enjoying the path, existing on Khasra No. 581 for the construction whereof, the Government had spent huge money.

3. The stand of the defendants before the learned trial Court, inter­alia, is that there exists a path from the suit land, which was being enjoyed by the defendants, but the same stood recently closed by the plaintiff, on account of which, the defendants were suffering huge loss. It was further the stand of the defendants that Gram Panchayat Kotla had spent huge money for the construction of the said path, which now forcibly stood closed by the plaintiff.

4. Alongwith the suit, an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’) was filed by the plaintiff, which was allowed by the learned trial Court vide order dated 30.06.2021, appended with the petition as Annexure P­1. In terms of the order passed on 30.06.2021, the learned trial Court restrained the defendants from raising any kind of construction, changing the nature of the suit land or causing any kind of interference over the suit land, until the final disposal of the matter. While allowing the application, the learned trial Court held that as the plaintiff undisputedly was exclusive owner of the suit land alongwith the other co­sharers and the defendants were not having any right upon the same, therefore, balance of convenience was in favour of the plaintiff. Learned trial Court also held that the plaintiff had produced on record a Tatima, which demonstrated that adjoining to Khasra No. 70, there was a path passing through Khasra No. 581, which leads to the house of the defendants, which was being used by other villagers also and the defendants were threatening to create another path through Khasra No. 70, only for the reasons that the same may be the shortest route to their house, which was not right. Learned trial Court also held that the question of easementary right and the contention of the defendants that there was an ancestral land existing upon the suit land would be decided on merit, but at the stage of Order 39 Rule 1 and 2 of the CPC, as the non­applicants/respondents were having an alternative path, that too recoded in the Jamabandi, the application for grant of interim relief could not be dismissed. Learned trial Court also mentioned in its order that since the plaintiff has shown his willingness to allow the defendants to use the said path, if desired by the plaintiff, the defendants could use the said path at the instance of the plain