ORDER

In this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 17.10.2022 (Annexure P/6) passed in M.C.A. 2000131/2016 by the VI Additional District Judge, Rewa, affirming the order dated 26.08.2022 passed in C.S. No.30-A/2016 by the Second Civil Judge, Class II, Sirmoure, District Rewa, whereby the application preferred by the petitioner/plaintiff under Order 39 Rule 1 and 2 of CPC was rejected.

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civil suit for declaration, partition and permanent injunction against the defendants to the effect that the suit land is in possession and ownership of the plaintiff since long and it was the suit property of Shri Ram Narayan, in which he had 1/3 share and the same deserves to be partitioned accordingly. An application under Order 39 Rule 1 and 2 of CPC was also filed. The same was dismissed by the trial Court on the ground that it is not clear as to whether the possession of the land in question was with the plaintiff, therefore, it cannot be said that the aforesaid land is in possession of the plaintiff. After considering the prima facie case, balance of convenience as well as irreparable injury, the learned trial Court rejected the application. Being aggrieved, the petitioner/plaintiff filed an appeal, which was dismissed by affirming the order passed by the trial Court.

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material and documents on record to establish his title/possession in the suit land. The balance of convenience is also in favour of the petitioner. The Courts below have not dealt with the application in its proper prospective, therefore, the impugned orders deserves to be set aside.

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opposed the prayer and supported the impugned order. The trial Court as well as the Appellate Court has passed a well considered and reasoned order, therefore no interference is warranted.

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facie come to the conclusion that it cannot be ascertained whether the partition had taken place and the petitioner was placed in possession. The learned trial Court as well as Appellate Court after considering the basic elements regarding existence of prima facie case, balance of convenience and irreparable injury has rejected the application.

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three principles are applied:-

(i) Whether plaintiff has a prima facie case;

(ii) Whether balance of convenience is in favour of the plaintiff;

(iii) Whether the plaintiff would suffer irreparable injury if temporary injunction is declined.

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jurisdiction to deal with the prayer of injunction on the aforesaid sound principles of law.

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Rajesh Mishra Vs.

Rajesh Vilas Singh Kushwaha (2015 (2) MPLJ 698)

(2) JLJ 210, Narendra

Kante vs. Anuradha Kante and others considering an application for grant of injunction, the Court has not only to take into consideration the basis elements regarding existence of a prima facie case, balance of convenience and irreparable injury, it has also to take into consideration the conduct of the parties since grant of injunction is an equitable relief.

1986 (1) MPWN 159, Kamal Singh

Vs. Jairam claimed merely on the basis of possession. The possession must be legal. Possession of trespassers cannot be protected. Same view is taken by this Court in 1990 (1) MPWN SN 136, Dattatraya Vaishampayan Vs. Janakarya Vibhag Karmachari

Grih Nirman Sahakari Samiti."

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Khushnuma Ibrahim Khan ((2013) 9 SCC 221) that if view of the trial Court is a possible view then the appellate Court should not interfere with the same. In the instant case, the trial Court, as well as, the lower appellate Court have duly considered the elements of prima facie case, balance of convenience and irreparable injury, which may be caused, therefore, both the Court below have rightly refused to grant injunction.

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Courts below so as to invoke inherent powers under Article 227 of the

Constitution of India.

dismissed

(S. A. DHARMADHIKARI)

JUDGE

Shanu