A trespasser in possession of Government land is not entitled to an interim injunction under Order 39 Rule 1 CPC to restrain the true owner from interfering with their possession.

R.A. Sharma

1. Petitioners filed a suit for permanent injunction, in the court of learned Civil Judge, Nainital, for restraining the defendants (State Government and four others) from interfering with their possession on the land in dispute. In that suit the petitioners also made an application for interim injunction under Order 39 Rule 1 CPC so as to restrain the defendant-respondents from interfering with their possession over the property in dispute, during pendeney of the suit. The case set-up by the petitioners before the court below was that they are in possession of about 400 Acres of land of the Government for the last about eight to ten years and are entitled to continue in possession in view of the policy of the Government of allotting the land to the weaker section of the public. The defendants, while opposing the relief of the plaintiff-petitioners, controverted the allegations made by the petitioners and urged that the petitioners have formed a gang and are trying to usurp the land in dispute which is part of the reserve forest of the Government of U. P. In this connection the defendants have stated that there is vast agricultural land in the name of some of the petitioners in order to demonstrate that the petitioners do not belong to weaker section.

2. The Trial Court by its order dated 30-3-1990 has rejected the application for interim relief of the petitioners on the ground interalia that the petitioners have no prima facie case in as much as the land in dispute is part of the reserve forest of the Government, over which the petitioners cannot lay any claim; that as the injunction can be granted against anybody excepting the true owner, no injunction can be granted at the instance of the petitioners against the Government, who is true owner of the land in dispute, that for obtaining equitable relief of injunction one must come with clean hands and good conduct which the petitioners are lacking- Appeal filed against the aforesaid order, by petitioners, has been dismissed by learned District judge, on 11-4-1990. It is against these two orders that this writ petition has been filed by the petitioners before this Court under Article 226 of the Constitution of India.

It is well settled that no interim iniunction under Order 39 CPC can be granted in favour of the plaintiff unless he makes out (i) prima facie case, (ii) balance of convenience and (in) irreparable injury. In this connection reference may be made to a decision of Hon'ble Supreme Court in case of Hazarat Surat Shah Urdu Education Society v. Abdul Saheb. 1988 AWC 1485, where Hon'ble Supreme Court has laid down that, "No temporary injunction should be issued unless the three essential ingradients are made out, namely, (i) prima facie case, (ii) balance of convenience, (iii) irreparable injury, which could not be compensated in terms of money. If a party fails to make out any of the three ingradients he would not be entitled to the injunction and the Court will be justified in declining to issue injunction." In the instant case the trial court, after appreciating the evidence produced by both the parties, has recorded a finding that the plaintiff-petitioners have no prima facie case and this finding has been approved by the learned District Judge in appeal. Position that emerges out is that the petitioners have no prima facie case. One of the three essential ingradients for grant of interim injunction under Order 39 Rule ICPC being absent, the petitioners are not entitled to the interim injunction in as much as if a person fails to make out even one of the three ingradients. he cannot be granted interim injunction. No ground so as to interfere with the aforesaid finding of the courts below, by this court, under Article 226 of the Constitution of India, has been made out.

3. Learned counsel for the petitioners has, however, argued that (i) once appeal is filed he is entitled to interim injunction as matter of course and for this proposition he has pla