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ALLAHABAD HIGH COURT
Krishna Murari and Pratyush Kumar, JJ.
Sayed Shahabuddin —Appellant
versus
Rajeev & Ors. —Respondents
First Appeal From Order No.787 of 2015
Decided on 6.4.2015
For the Appellant:A.P. Tewari, S.S. Tripathi, Advocates
IMPORTANT POINT
To prove prima facie case burden is on the plaintiff and he cannot rely upon revenue record only, which is maintained for revenue purpose only. No injunction could be granted in favour of the plaintiff unless he shows as to how he came in possession of the property.
Headnote:Civil Procedure Code 1908, Order 39 Rules 1 & 2 – Discretion of the Court for granting Ad Interim Injunction – Object of grant of Interim Injunction – The main object of interim injunction is to preserve the suit property in its present form – The plaintiff seeking injunction against raising construction by the opposite party – The court cannot become a party to get the property converted into different nature – Therefore, held the balance of convenience was not in favour of the plaintiff – Moreover the plaintiff relied upon revenue record to show his possession – Not relevant – Revenue record only for collection of revenue and not a proof of title – Plaintiff failed to show as to how he came in possession of the suit property – Held no prima facie case in favour of the plaintiff – Interim Injunction rightly refused. (Paras 12 to 16, 20 & 21)
Facts of the Case
The contention of the plaintiff was that the appellant was Bhoomidhar in possession of Plot Nos. 83 & 85, construction of his dwelling house is going on, defendants/respondents (hereinafter referred as “respondents”) with a view to grabbing the property are crating obstruction and claiming that they would make nurses’ hostel and doctors’ residences over the land of the appellant. In Civil Misc. Writ Petition No. 17147 of 2009, the court has passed interim order, which is still operative, but the respondents are disobeying the order. When the appellant filed a suit before the court below on the strength of order dated 31.03.2009, application for temporary injunction was illegally rejected. The property in dispute was surrounded by appellant’s boundary wall. In the year 2009, the respondent tried to dispossess him and appellant filed the suit before the Civil Court along with application for interim injunction.
Findings of the Court
The appellant by way of interim order wished the Court to restrain the respondents not only to restrain them from allegedly making interference in the use, occupation and possession of the property in dispute, but also to restrain them from stopping the appellant from making his construction, thereby changing the nature of the suit property. The object of interim injunction is always to preserve the suit property in its present form. The Court would not become a party to get the property in dispute converted into the property of a different nature i.e. from open land to a constructed residential house, therefore, balance of convenience is not in favour of the appellant. Therefore, the trial Court rightly refused to grant interim injunction.
Result: Appeal dismissed.
1. The instant appeal is directed against the judgment and order dated 17.3.2015 passed by Civil Judge (S.D.), Gorakhpur in O.S. No.963 of 2014, Sayed Shahabuddin Vs. Rajeev and others, whereby application for temporary injunction filed by the plaintiff/appellant (hereinafter referred as “appellant”) was rejected.
2. Heard learned counsel for the appellant.
3. Learned counsel for the appellant in support of the appeal has contended that the appellant is Bhoomidhar in possession of plot nos.83 & 85, construction of his dwelling house is going on, defendants/respondents (hereinafter referred as “respondents”) with a view to grabbing the property are creating obstruction and claiming that they would make nurses’ hostel and doctors’ residences over the land of the appellant. In Civil Misc. Writ Petition No.17147 of 2009 this court has passed interim order, which is still operative, but the respondents are disobeying the order. When the appellant filed a suit before the court below on the strength of order dated 31.3.2009, application for temporary injunction was illegally rejected.
4. Learned counsel for the appellant submits further that in favour of the appellant prima facie case is made out. Balance of convenience lies in his favour and due to obstruction created by the respondents he is likely to suffer irreparable loss, but the court below misread the evidence and erroneously rejected the application for temporary injunction.
5. In order to appreciate the above arguments, we would like to mention briefly facts of the respective parties.
6. Property in dispute comprises gata nos.83 & 85 surrounded by appellant’s boundary wall. In the year 2009 respondents tried to dispossess him and appellant had to file O.S. No.589 of 2008 before the court of Civil Judge (S.D.), Gorakhpur, he had also filed C.M.W.P. No.17147 of 2009, Sayed Shahabuddin Vs. Civil Judge (S.D.), Gorakhpur and others wherein on 31.3.2009 the following order was passed by this Court:-
“In spite of time granted by this Court on 27.03.2009 learned Standing Counsel could not seek instruction required for by the Court.
Today the case is taken again on request made by the learned counsel for the petitioner as it was directed to be taken up today.
Notice on behalf of respondent nos.3 to 10 has been accepted by learned Standing Counsel.
Issue notice to the respondent no.2 returnable at an early date.
Respondents are directed to file counter affidavit within a period of four weeks. Petitioner shall have three weeks thereafter to file rejoinder affidavit.
List thereafter.
Till the next date of listing, the respondents are restrained from demolishing the disputed construction existing over the suit property and they are further restrained from raising any construction thereon.
The Senior Superintendent of Police, Gorakhpur is directed to ensure compliance of order passed by this Court.”
7. In spite of the knowledge of the afore-quoted order, the respondents are illegally creating obstruction in the construction of the appellant and they are claiming that they would construct a nurses training centre, nurses’ hostel and doctors’ residence for which Government have sanctioned Rs.10 crore. After committing embezzlement of that amount, respondents are claiming that the aforementioned buildings have been constructed. On 10.7.2014 the respondents again interrupted the construction of the appellant. A suit for prohibitory injunction is filed with the prayer that the respondents be restrained not to interfere in use, occupation and possession of the appellant on property in dispute and they be further restrained not to create obstruction in the construction of the appellant. Along with the plaint an application under Order 39 Rule 1, 2 and Section 151, C.P.C. was also moved duly supported with affidavit.
8. Against this application respondent nos.2 to 7 have filed their objections along with counter affidavit wherein averments of the plaint and supporting affidavit have bee
