1977 Supreme(MP) 90

G. P. Singh, J.
Darshanlal v. Ramshanker
C. Revn. No. 505 of 1977 (J); Decided on 18-8-1977.

Headnote:Civil P. C, 1908 - O. 39, R. 1 and 2 -- temporary injunction under -- when may he granted in mandatory form -- defendant dispossessing plaintiff after institution of suit -- possession may be restored.

        The plaintiff, apart from claiming re-conveyance of the suit land, claimed permanent injunction against the defendant restraining him from interfering with the plaintiffs possession. He applied on 17th June 1976 for temporary injunction. It was alleged in the application that on 6th June, the defendant put manure in the land and on 10th June 1976 the defendant forcibly cultivated the land. The trial Court by its order, dated 24th June 1976, granted a temporary injunction in the plaintiffs favour Trial Court also directed the defendant to put the plaintiff in peaceful possession. An appeal was tiled against this order by the defendant which was dismissed by Additional District Judge, Rajnandgaon, on 22nd November 1977. During the pendency of the appeal, the Additional District Judge had ordered that status quo be maintained. It appears that during the pendency of the appeal the defendant removed the crop standing on the land. After the dismissal of the appeal, the present revision was filed by the defendant This Court also directed that status quo be maintained during the pendency of this revision.

        Held : Both the Court below have reached the conclusion that, on the date of the suit, the plaintiff was in possession of the suit land inspite of the ostensible sale executed by him on 15th April 1974, Indeed, in the revenue proceedings for mutation of names, when the defendant was examined as a witness on 10th November 1975, he admitted in cross-examination that the plaintiff was in actual possession of the land in suit. The defendant no doubt stated that the plaintiffs possession was as a tenant on Adhiya basis, but the fact remains that inspite of sale, the plaintiff admittedly continued to be in possession of the land. It is further clear that the defendant soon after the filing of the suit dispossessed the plaintiff. It is, therefore, reasonable to infer that the defendant with the notice of the institution of the suit for permanent injunction tried to alter the factual basis on which the relief of permanent injunction was claimed by forcibly dispossessing the plaintiff. It the circumstances, he cannot be allowed to take advantage of his own wrong and to defeat the suit. The trial Court was, therefore, right in issuing temporary injunction in mandatory form I have earlier indicated that because of the stay granted by the Additional District Judge as also by this Court, the status quo is being maintained which means that the defendant is still in possession of the suit land. The defendant must have sown the crop. Having regard to these facts, it appears to be just that the defendant should be allowed to reap the crop. Learned counsel for the defendant agrees that the crop will be removed before Ist November 1977.

        The revision is partly allowed The trial Courts order is modified to this extent that the defendant shall vacate land before 1st November 1977 and he shall not enter upon the land for exercising any act of possession from 1st November 1977 until the disposal of the suit. The plaintiff shall be entitled to take over possession of the land from 1st November 1977. The other directions contained in the trial Courts order are confirmed subject to this that the plaintiff shall be liable for payment of mesne profits to the defendant from 1st November 1977 upto the date of decree in the suit in case ultimately the suit fails and it is found that the plaintiff was not in possession on the date of the suit.