1983 Supreme(MP) 113

K. M. Agarwal. J.
Vidhyaram v. Ramhet.
C. R. No. 1030 of 1983 (G); Decided on 5-4-1983.

Headnote:(1) Civil P. C., 1908 -- O. 39, Rr. 1 und 2 -- temporary injunction based on sale-deed, revenue entries and also on previous litigation -- order not assailable.

        (2) Civil P. C., 1908 -- O. 39, Rr. 1 and 2 -- temporary injunction -- identity of disputed land known to the parties -- injunction order is justified.

        It is not disputed that the applicant had also filed a separate suit in respect of the suit land. In that suit, the applicant was not successful in obtaining a temporary injunction against the non-applicants. However, the non-applicants were directed to deposit an amount of Rs. 5,000/- per year during the pendency of the suit filed by the applicant, towards mesne profits of the suit land. It appears that the applicant was found making attempts to dispossess the non-applicants from the suit land inspite of the fad that the applicant was not found in possession of the suit land and his application for injunction was rejected. Consequently, the non-applicants filed the present suit against the applicant and also made an application for grant to temporary injunction restraining the applicant from interfering with their possession over the suit land pending disposal of the suit against them. This application was allowed by the Court below and the order passed by the Court below as also affirmed in appeal by the lower appellate Court.

        Held : The learned counsel for the applicant submitted that the Courts below were influenced by the order passed in the earlier suit on the applicants application for grant of temporary injunction and they should have decided the non-applicants application for temporary injunction on its own merits and not on the basis of any order passed in the earlier suit filed by him.

        I do not find any merit in the said contention of the learned counsel for the applicant. A perusal of paragraphs 4 and 7 of the impugned order would show that lower appellate Court had taken into account of the sale-deed, the revenue entries and other material on record for holding a prima facie Case in favour of the non-applicants, besides considering the rejection of the applicants application for grant of temporary injunction in the suit filed by him. Consequently, it cannot be said that the lower appellate Court or the Court below was influenced by the order passed against the applicant in the suit filed by him. The order of injunction passed by the Courts below was not solely based on the order passed in the suit filed by the applicant on his application for grant of temporary injunction. The first submission of the learned counsel is, therefore, liable to be rejected.

        It was next contended that the identity of the suit land was not established and, therefore, the Courts below were wrong in granting an injunction in favour of the non-applicants. According to the learned counsel, the question of the disputed survey number was admittedly in his possession in pursuance of the sale-deed in his favour. The remaining portion of the disputed Survey number was also asserted to be in his possession by the applicant in pursuance of certain entries in his favour. In the circumstances, unless and until the demarcation was made or partition effected, it could not be assumed that the non-applicants were in possession of the suit land.

        Here also I do not find myself in agreement with the argument of the learned counsel for the applicant. Admittedly, the applicant has also filed a suit in respect of the suit land. The parties, therefore, knew as to which portion of the disputed Survey number is the subject matter of the suit.

        It is also to be seen that a portion of the suit survey number is claimed by the applicant to be in his possession in pursuance of a sale-deed in his favour and the remaining portion is claimed to be under an oral lease.

        Unless and until there was an identity between the land purchased by the applicant, there would have arisen no question for obtaining the remaining portion of the suit land on lease by the applicant. Revision dismissed.