1982 Supreme(MP) 7

H. G. Mishra, J.
Suganbai v. Amarsingh.
C. Revn. No. 528 of 1980 (I); Decided on 11-1-1982.

Headnote:(1) Civil P. C., 1908 -- O. 39, Rr. 1 and 2 -- temporary injunction -- plaintiff not proving his possession on the date of suit -- not entitled to relief under.

        (2) Civil P. C., 1908 -- O.40, R. 1 -- order of appointment of receiver criterion of --justness and convenience to one party -- not sufficient -- rights of both the parties should be regarded -- appointment virtually resulting in dispossession -- cannot be made.

        (3) Land Revenue Code, 1959 (M. P.) -- S. 117 -- presumption of entries under --conflicting entries -- later entry must prevail.

        (4) Possession -- continuity of -- presumption.

        This is a revision by the plaintiff Suganbai against that part of the order passed by the second Additional District Judge Ujjain, on 5-3-1980 whereby the order dated 16-11-1979, passed by the trial Court, rejecting the application submitted by her for issuance of a temporary injunction restraining the defendant non-applicants herein from interfering. with her possession over the land in dispute, has been affirmed. One of the defendants, namely, Amarsingh has preferred a revision (Civil Revision No, 306 of 1980 against that part of the order passed by the learned Additional District Judge on 5-3-1980, whereby appointment of receiver over the suit land has been ordered.

        Held: The instant case cannot be regarded to be a case of mere stray entries. The entries in the Kbasras of the year 1976-77 recording Amarsingh to be in actual possession of the suit land have been repeated in the Khasras of the next following year i. e. 1977-78. In view of this factual position available at this stage, the entries cannot be regarded to be mere stray entries. In this view of the matter the ratio of the case of B. S. Temple v. P. Krishna Murthi (AIR 1973 SC 1299) could nor be usefully employed to sustain the conclusion reached by the learned Additional District Judge in proceedings for issuance of an interim injunction what is to be decided is as to who was in actual possession of the suit land on the date of initiation of the proceeding for the purpose, the entries in tae Khasras of the relevant year, namely, that of initiation of the proceedings, are to be regarded as relevant. It is true that the plaintiff was recorded to be in possession in the Khasras of the years preceding 1976-77, but the presumption of continuity of possession cannot be drawn forward in view of the fact that in the Khasras of the year 1976-77, Amarsingh ( defendant No. 1) is shown to be the person in possession and the entry is repeated in the Khasras of the next following year. Where entries in the record of right are relied on and there is conflict between them, it is the later entry which must prevail, as observed in Durgasingh v. Tholu ( AIR 63 SC 361 ). I see no legal impediment in extending and applying the aforesaid principle to the entries of the present character. Accordingly the later entries namely the entries contained in the Khasras of the year 1976 77 and 77-18 will prevail for the present purposes and since the plaintiff has failed to rebut the presumption attaching to the entries, as discussed above it has to be regarded that the defendant No 1 Amarsingh was in cultivating possession of the suit land at the time of initiation of the proceedings. Accordingly, the learned Judge of the Courts below were right in reaching the ultimate conclusion that the plaintiff is not entitled to the issuance of a temporary injunction against the defendants though the reasoning employed by them in reaching the aforesaid conclusion is not correct. For reasons stated above it has to be held that the plaintiff was exfacie out of possession on the date of institution of the suit.

        In this view of the matter the plaintiff is not entitled to the issuance of a temporary injunction sought to protect the possession, which is not with her, the plaintiff. It is the law well settled that in order to claim an injunction the plaintiff has to prove the co-existence of three factors, namely, (1) prima facie case, (2) balance of convenience, and (3) irreparable loss Since the plaintiff has not shown herself to be in possession on the date of institution of the suit, no prima facie case can be regarded to be in her favour For the same reason there is no question of balance of convenience and irreparable injury to the plaintiff either. Accordingly, the order of rejection of the appreciation submitted by the plaintiff for insurance of a temporary injunction is m1mtained, though on different grounds mentioned above.

        This brings me to the question of appointment of receiver. In view of the fact that the defendant No. 1 Amarsingh is in actual possession of the suit land, an order of appointment of receiver will amount to virtually an order or dispossessing him. The plaintiff is not shown to have a present right to remove him from possession of the land in dispute. Accordingly, the learned Additional District Judge acted illegally in holding that the appointment of receiver will be just and convenient in the case, Justness and convenience to one party cannot be a criterion on which the Court can pass an order under O.40, R. 1 CPC. Justness and convenience has to be determined with reference to the fads and circumstances of the case and with due regard to the rights of both the parties. Simply because the plaintiff elects to say that the appointment of receiver will be just and convenient, receiver cannot be appointed. The words "just and convenient" occurring in rule 1 of O. 40 CPC do not mean that the Court is to appoint a receiver simply because the Court thinks it convenient: they mean that the Court should appoint a receiver for the protection of rights or for the prevention of injury according to legal principles, as observed in Aslatt v. Corporation of Southampton (188) 16 CD 143, at P. 148. It is true that the order of appointment of a receiver is discretionary, but the discretion has to be exercised in accordance with the principles on which judicial discretion is exercised. AIR 73 SC 1299 distinguished, 1974 JLJ 279, AIR 1963 SC 361 and 16 CD 143 relied on. Revision of plaintiff dismissed and that of defendant allowed.