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High Court Of Madhya Pradesh
H. G. Mishra, J.
GANIKHAN - Appellant
Versus
AMANABAI - Respondents
Civil Revn. 655 Of 1981
Decided On : 03/15/1982
INJUNCTION - POSSESSION - SECTION 145, CR. P. C. - REVISION - JURISDICTION - [ORDER 39, RULES 1 AND 2, C. P. C.] - Where the plaintiffs were in possession of the suit land on the date of initiation of the proceedings and the attempt of the defendants to disturb their possession was foiled by the order ultimately passed by the Court providing for continuity of their possession, the prima facie case was in their favour. The balance of convenience also will be regarded to be in their favour, inasmuch as the plaintiffs cannot be left at the mercy of the defendants. Since the defendants are out of possession and the plaintiffs are in possession, comparatively greater mischief will result to the plaintiff if the injunction is withheld, and since dispossession of the applicants will result in irreparable injury, temporary injunction has to be issued to protect their possession.
Fact of the Case:
Plaintiffs filed a suit for declaration of title and issuance of a permanent injunction on the allegations that they are Bhumiswamis in possession of the land comprised in Survey Nos. 437, 439 and 457 situated in village Betma and the land comprised in survey Nos. 475, 471 and 472, situated in village Daulatabad; that in the suit lairds Allabelikhan and after his death Ins-heirs have no right, title or interest; that in 3 previous Civil Suit No. 28-A of 1969, a compromise had been effected to the effect that Allabelikhan will remain in possession of the land in dispute during his lifetime and after his death the land will go to those persons, who are entitled to hold it. Allabelikhan died on 4-5-1977. Thereafter the suit land has been in possession of Ganikhan and Chhotekhan, the plaintiffs, who have been activating the same that the defendants haw begun to deny the plaintiffs' title in the suit land and want to dispossess them forcibly. Hence the suit for declaration of title to the effect that the plaintiffs be declared to be Bhumiswamis in possession of the suit land and for issuance of a permanent injunction for restraining the defendants from interfering with possession of the plaintiffs ever the land in dispute.
Finding of the Court:
The plaintiffs were in possession of the suit land on the date of initiation of the proceedings and the attempt of the defendants to disturb their possession was foiled by the order ultimately passed by the Court providing for continuity of their possession. The prima facie case was in their favour. The balance of convenience also will be regarded to be in their favour, inasmuch as the plaintiffs cannot be left at the mercy of the defendants. Since the defendants are out of possession and the plaintiffs are in possession, comparatively greater mischief will result to the plaintiff if the injunction is withheld, and since dispossession of the applicants will result in irreparable injury, temporary injunction has to be issued to protect their possession.
Issues: Whether the plaintiffs were entitled to a temporary injunction restraining the defendants from interfering with their possession of the suit land?
Ratio Decidendi: The plaintiffs were in possession of the suit land on the date of initiation of the proceedings and the attempt of the defendants to disturb their possession was foiled by the order ultimately passed by the Court providing for continuity of their possession. The prima facie case was in their favour. The balance of convenience also will be regarded to be in their favour, inasmuch as the plaintiffs cannot be left at the mercy of the defendants. Since the defendants are out of possession and the plaintiffs are in possession, comparatively greater mischief will result to the plaintiff if the injunction is withheld, and since dispossession of the applicants will result in irreparable injury, temporary injunction has to be issued to protect their possession.
Final Decision: The revision petition was allowed. The impugned order passed by the learned Addl. District Judge was set aside and that passed by the trial Court was restored. As a result the injunction granted by the trial Court restraining the defendants from interfering with the possession of the plaintiff-applicants was restored and it was ordered that that order will remain operative until the decision of the suit.
( 1 ) THIS revision by the plaintiffs is against the order dated 14-7-1981, passed by the Addl. District Judge, Indore, whereby after reversing the order passed by the trial Court dated 12-2-1981, rejecting the application submitted by the defendants-non-appli-cants for issuance of a temporary injunction and allowing that submitted by the plaintiffs for issuance of a temporary injunction restraining the defendant-non-applicants from interfering with their possession over the suit land, the learned Addl. District Judge has vacated the temporary injunction issued against the defendants-non-applicants and has also ordered issuance of a warrant for deli-very of possession to the defendants-non-applicants-herein and has further ordered issuance of a temporary injunction restraining the applicants-herein from disturbing possession of the defendant non-applicants over the suit land.
( 2 ) FACTS material for decision of this revision are as under: The applicants along with Chhotekhan have filed a suit on 10-5-1977 against the defendant-nonapplicants for declaration of title and issuance of a permanent injunction on the allegations that they are Bhumiswamis in possession of the land comprised in Survey NOS. 437, 439 and 457 situated in village Betma and the land comprised in survey Nos. 475, 471 and 472, situated in village Daulatabad; that in the suit lairds Allabelikhan and after his death Ins-heirs have no right, title or interest; that in 3 previous Civil Suit No. 28-A of 1969, a compromise had been effected to the effect that Allabelikhan will remain in possession of the land in dispute during his lifetime and after his death the land will go to those persons, who are entitled to hold it. Allabelikhan died on 4-5-1977. Thereafter the suit land has been in possession of Ganikhan and Chhotekhan, the plaintiffs, who have been activating the same that the defendants haw begun to deny the plaintiffs' title in the suit land and want to dispossess them forcibly. Hence the suit for declaration of title to the effect that the plaintiffs be declared to be Bhumiswamis in possession of the suit land and for issuance of a permanent injunction for restraining the defendants from interfering with possession of the plaintiffs ever the land in dispute.
( 3 ) ALONG with the plaint the plaintiffs sub-mitted an application for issuance of a temporary injunction on 10-5-1977 in which on the basis of the aforesaid facts a prayer for issuance of a temporary injunction was made restraining the defendants from interfering with possession of the plaintiffs over the suit land. An ex parte injunction was issued by the trial Court on 11-5-1977. Against this order the defendants preferred Misc. Appeal No. 98 of 1977, which was allowed by order dated 5-12-1977 and order granting ex parte injunction was set aside and it was directed that the trial Court should decide the ap-plication for grant of interim injunction after hearing both the parties. On 12-12-1977 the defendants submitted an application for issuance of a temporary injunction under Order 39, Rr. 1 and 2 and Section 151, C P. C. restraining the plaintiffs from interfering with their possession over the land in dispute and to dismiss the application submitted by the plaintiffs for grant of a temporary injunction. The defendants had submitted reply to the ap-plication submitted by the plaintiffs for grant of a temporary injunction, on 8-11-1979, stating that the suit land was m possession of Allabelikhan in pursuance of the compromise and after the death of Allabelikhan on 4-5-1977 the defendants are in possession of the land in dispute and crops sown by the defendants arc standing on the soft land. Accordingly, the plaintiffs are not entitled to issuance of a temporary injunction. The plaintiffs by their reply dared 26-3-1980 opposed the application submitted by the defendants for issuance of a temporary injunction against them.
( 4 ) DURING the pendency of the suit pro-ceedings under
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