1979 Supreme(MP) 371

IN THE HIGH COURT OF MADHYA PRADESH
H.G. MISHRA, J.
Nonitram - Applicant
Vs.
Hira - Respondents
C. Revn. No. 631 of 1976 (G)
Decided On : 13-03-1979

Headnote:(1) Civil Procedure Code, 1908 – S. 115 – revisory jurisdiction of High Court – when may be exercised – impugned orders wholly illegal and contrary to well settled principles – jurisdiction may be exercised.

       (2) Civil Procedure Code, 1908 – O. 39, R. 1 & 2 – temporary injunction under – when may be granted in favour of plaintiff – sale deed in favour of defendant by the predecessors – in – title of the plaintiff – mutation also in name of defendant – plaintiff not entitled to any relief.

       (3) Deed – registered sale – deed – recitals of delivery of possession – value of.

        Short Note

       1. In the suit the plaintiff – non – applicants submitted an application for issuance of interim injunction restraining the defendant – non – applicants from taking possession of the suit – land from the plaintiff – non – applicants. This application was opposed by the defendant – applicants, but the trial Court granted the interim injunction in favour of the plaintiff restraining the defendants from interfering with their possession. Aggrieved by this order, the defendants preferred appeal, which has been rejected. Hence this revision.

       2. In this revision Shri Lokendra Gupta, learned counsel for the defendant – applicants contended that the impugned order has been passed in an illegal manner after ignoring the impact of the recital of possession contained in the sale – deed executed by the grandmother and mother of the plaintiff – non – applicants, that there is no prima facie case, balance of convenience and concept of irreparable injury in favour of the plaintiffs. Mr. K.N. Gupta, learned counsel for the plaintiff – non – applicants argued in support of the impugned order.

       Held : In the sale – deed dated 5 – 2 – 74, purported to be executed by Laltobai and Halkibai, predecessors – in – title of the plaintiff – non – applicants there is a statement that the executants had delivered possession to the purchasers, viz., defendant – applicants. Undoubtedly this statement shows prima facie that possession was given to the purchasers.

       3. On the basis of the aforesaid sale – deed the applicants started mutation proceedings. The plaintiffs were objectors in these proceedings. After recording of evidence of the parties, Tahsildar, Basoda by his order dated 30 – 9 – 75 (which is at Index No. 7 of the trial Court's file) held that Halkibai mother of the plaintiff had executed the sale – deed in favour of the applicants therein and that Laltobai had joined in execution of the sale – deed by way of abundant – caution. This order is not shown to have been made subject of challenge of any appeal. This, in view of the registered sale – deed set up by the defendants and aforesaid mutation order, it has to be held that there is no prima facie case in favour of the plaintiff – non – applicants existence of which is one of the essential conditions to sustain grant of interim injunction. Balance of convenience was also not in favour of the p1aintiffs who were not shown to be in possession of the suit – land after 5 – 4 – 74. Continuance of entry in the name of vendors will ensure to the benefit of vendees. The source of entry in the name of Laltobai disappeared with execution of sale – deed, in favour of Halkibai on 3 – 10 – 66 and after execution of sale – deed dated 5 – 2 – 74, executed by Laltobai and Halkibai in favour of defendant – applicants. Therefore implicit reliance on the Khasra entries for the years 2030 and 2031 could not be placed by the learned Judge of the Court below to order issuance of interim – in junction or to maintain the grant thereof. Ultimately, the entry which could not otherwise continue in the name of Laltobai, disappeared with passing of mutation order dated 30 – 9 – 75 in favour of the defendants and the entry in the name of defendant – applicants was made. It is contended that this mutation order has been passed after institution of the present suit on 18 – 9 – 75. This argument though attractive is of no intrinsic value, because the mutation order reflects the position brought about execution of the sale – deed. I am aware of the limitations imposed on the revisional power of this Court yet as the manner in which the impugned orders have been passed by the Courts below is wholly illegal and their approach is contrary to the principles well settled a clear case for exercise of revisory jurisdiction by this Court is made out and the impugned orders cannot be allowed to stand as they are calculated to cause failure of justice, at the instance of the plaintiffs, who are daughters and sons of Halkibai. 1976 MPWN 331 and 1978 (Vol. II) MPWN 185, relied on. Revision allowed.