Plaintiffs seeking temporary injunction need not prove clear title but must show a fair question regarding their legal right, with courts considering balance of convenience and irreparable loss.

The instant petition under Article 227 of the Constitution of India is preferred against the order dated 03.07.2024 passed by Civil Judge, Senior Division, Gwalior in Civil Suit No.RCSA 122/2024 and order dated 07.08.2024 passed by 10^th District Judge, Gwalior in MCA No.126/2024, whereby an application under Order 39 Rule 1 and 2 CPC preferred by the respondents no.1 and 2/plaintiffs was allowed and affirmed in appeal restraining the present petitioners from interfering with the peaceful possession of plaintiffs as well as not to make any efforts to evict them from the suit property either by themselves or through any agent nor the petitioner would be entitled to alienate the suit property till next orders and was affirmed in the appeal.

2. Learned counsel for the petitioners had vehemently argued that the respondents no.1 and 2/plaintiffs had purchased the suit property from one Mamta Agarwal and one Radha Agarwal being consenting party by way of registered sale-deed dated 03.12.2015, who had acquired right and title in the property by way of registered sale-deed dated 01.04.2006 when admittedly the predecessor in title of Mamta Agarwal and Radha Agarwal i.e. Chironji Lal had mortgaged the said suit property on 21.06.2001 with Punjab and Sindh Bank Branch Jayendraganj, Lashkar Gwalior, therefore, legally Mamta Agarwal and Radha Agarwal themselves had no right and title in the property and thus, could not have transferred a better title to the plaintiffs in the year, 2015 from the title which they had and as Chironji lal who was the original title holder of the property could not repay the loan, the suit property which was kept mortgaged with the bank was symbolically taken into possession on 07.10.2021 and was auctioned through NIT dated 07.05.2022 published in newspapers and the petitioners were declared successful bidders vide sale- deed dated 02.01.2023. Sale-deed was executed in favour of Smt. Manju Rai w/o Shri K.K. Shivhare and by way of said sale-deed she became the rightful owner and possession holder of the suit property and accordingly, had also got her name mutated in the municipal records. Thus, when the predecessor in title of the plaintiffs themselves had no better title, they could not have transferred the same to the plaintiffs and as the present petitioners are in occupation of the suit property, the injunction granted in favour of respondents no.1 and 2/plaintiffs is greatly prejudicing the rights of the petitioners, thus, it is prayed that the orders impugned herein being per se illegal deserves to be set aside.

3. It was further argued that for the purpose of proving a prima facie case there has to be proof of prima facie title and as the plaintiffs are claiming their title through Mamta Agarwal and Radha Agarwal who themselves had purchased the property when the property was kept in mortgage with the bank had no good title to transfer even though the property was transferred way back in the year, 2015 could not confirm a better title over respondents no.1 and 2/plaintiffs, thus, the very first limb of Order 39 Rule 1 and 2 CPC as to prima facie case is not established in favour of respondents no.1 and 2/plaintiffs, the impugned orders suffers from perversity and illegality, thus, are liable to be set aside.

4. It was further argued that since the bank had already taken possession of the property in question and had handed over to the petitioner in exercise of powers of SARFAESI Act there are presumptions about correctness of those proceedings and it could very well be said that the possession has rightly been handed over to the petitioners and since the said proceedings had not been challenged by the plaintiffs, the order granting injunction is not sustainab