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High Court Of Madhya Pradesh
H. G. Mishra, J.
CHHITOO HIRAJEE
Versus
SAKHARAM UMDU
Decided On : Jan 13,1981
It is not necessary that a party should establish its title at the stage when the application for issuance of a temporary injunction is taken up for consideration. The question of title is wholly irrelevant at this stage of the suit. Lawfulness or otherwise of the character of possession is not relevant for deciding an application for issuance of a temporary injunction. [Para 6
It is law well established that in order to sustain a grant of injunction three pillars, must co-exist, (1) prima facie case, (2) balance of convenience and, (3) irreparable injury.
Ordinarily a temporary injunction should be granted to protect the possession of the plaintiff; otherwise the suit will be liable to be rendered in fructuous. Dispossession by itself constitutes irreparable injury. [Para 10
(2) Khasra entry-a person recorded in possession-there is a presumption of continuity-presumption can be drawn both back wards and forwards.
The Khasras of the years 1954 to 1963 record the name of Shrikrishna and after him Chhitoo as persons in possession. If in Khasras of latter years the entry showing Chhitoo (plaintiff-applicant No. 1) to be in possession disappears, the omission by itself is not enough to destroy the presumption of continuity of possession. The presumption of continuity can be drawn both forward and backwards. [Para 7
(3) Civil P. C., 1908 - S, 115 - order of two Courts below-when may be challenged in revision.
In this case, the manner in which the learned Judge of the appellate Court has passed the impugned order is illegal. The challenge in this case is not regarding the propriety or correctness of the order, but to the manner in which it has been arrived at. The impugned order, in face of it, discloses a clear case of acting in exercise of jurisdiction illegally and/or with material irregularity. If the impugned order is allowed to stand, it will occasion a failure of justice and cause irreparable injury to the plaintiff-applicants. [Para 12
(4) Civil P. C., 1908 - O. 39, Rr.1 and 2 - temporary injunction in favour of a defendant-cannot be granted under Rule 1 or 2-temporary injunction under inherent powers-when may be granted.
In clause (a) of Rule 1 of O.39 the use of the expression 'any party' is certainly wide enough to cover the plaintiff as well as the defendant. But the right to maintain an application is confined to those cases where the property in dispute in the suit is in danger of being wasted, damaged or alienated or wrongfully sold in execution of a decree. In view of the wording of clause (b) of R. 1 of O.39, it cannot be argued successfully that an application by the defendant can be regarded to be maintainable under it. 1973 JLJ SN 114 relied on. [Para 13
On the language of Rule 2, there is no room for argument that injunction can be claimed or granted in the present case under R 2 of O. 39, CPC in favour of the defendant-non-applicants. [Para 14
The Courts certainly have power to issue a temporary injunction in exercise of inherent powers, but that power has to be exercised on showing that extraordinary circumstances exist necessitating exercise of that power. [Para 16
( 1. ) THIS revision by the plaintiffs Chhitoo and his sons is against the order dated 16-3-1977, whereby the learned Additional District Judge, mandleshwar, has affirmed the order passed by the trial Court dated 7-12-1976, whereby the learned trial Judge rejected their application for issuance of a temporary injunction against defendant-non-applicants and allowed the application submitted by the defendant-non-applicants for issuance of a temporary injunction against the plaintiff-applicants.
( 2. ) THE facts material For the decision of this revision are as under: The plaintiff-applicants herein have brought the suit for declaration of their title and for issuance of a permanent injunction in respect of agricultural land situated in village Rawat-Pipliya, Tahsil Barwaha, on the allegations that they are Bhumiswamis in possession of the land in suit and that the defendant-non-applicants threatened to dispossess them. In the suit, the plaintiff-applicants submitted an application for issuance of a temporary injunction against the defendant-non-applicants on the ground that they want to dispossess them (the plaintiffs) by taking the law into their hands and that if interim if junction to protect their possession is not issued, then they will be forcibly dispossessed from the suit land. This application was,opposed by the defendant-non-applicants on the ground that they are in possession of the suit land and that they have been recorded as tenants in possession of the suit land with effect from the year 1963-1964 upto the date of institution of the suit. Accordingly, the plaintiffs are not entitled to the issuance of a temporary injunction. The defendant-non-applicants also submitted an application separately for issuance of a temporary injunction against the plaintiff-applicants on the ground that the plaintiffs are attempting to dispossess them. Therefore, they be restrained from interfering with their possession. The application submitted by the plaintiff-applicants was dismissed by the trial Court and that submitted by the defendant-non-applicants was allowed restraining the plaintiff-applicants herein from interfering with their possession over the land in dispute. Aggrieved by this order the plaintiff-applicants preferred an appeal, which has been dismissed. Aggrieved by this order the plaintiff-applicants have filed this revision.
( 3. ) IN this revision Shri S. D. Sanghi, learned counsel for the plaintiff-applicants contended that the impugned order has been arrived at in an illegal manner because the presumption of continuity of possession enures in favour of the plaintiff-applicants and the same has not been taken into consideration by the learned Additional District Judge; that the predecessor-in-title of the plaintiffs and thereafter the plaintiffs have been recorded as persons in possession in Column No. 12 in the Khasras of the years 1954 to 1962-63; that omission of the entry in Column No. 12 in the Khasras of subsequent years is attributable to order by the Collector in not showing the persons in possession in Column No. 12; that the question of title being wholly irrelevant for the present purposes, the learned Additional District Judge acted illegally in treating that the plaintiffs have not succeeded in showing prima facie case because their claim regarding title to the land appears to be doubtful; that the admission of the defendant-non-applicants contained in the first information report lodged by them on 23-4-1976 regarding the factum of possession of the suit land being with Sakharam and that contained in their application submitted to the Collector dated 19-5-1976 have been over-looked by the learned additional District Judge. Consequently, the application submitted by the revision applicants has been rejected illegally in exercise of jurisdiction. So far as the application submitted by the defendant-non-applicants is concerned, it was contended by Shri Sanghi that the application is neither tenabl
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