Raghubeer Sahai vs Jai Prakash and Others

Sanjay Misra, J.—Heard Sri Sundeep Agarwal, learned Counsel for the Plaintiff-Appellant.

This is a first appeal from order filed under Order 43 Rule 1 (r) of the Code of CPC against the order dated 28.1.2011 passed in Original Suit No. 69 of 2010 by the Additional District Judge, Court No. 2, Mahoba, whereby the temporary injunction application filed by the Plaintiff-Appellant has been rejected.

Learned Counsel for the Appellant has submitted that the house in question was purchased from the own income of the Plaintiff-Appellant and when the Defendant refused to handover the possession of the house in question and started demolishing and raising construction the necessity for filing the instant suit arose.

According to the Appellant, the trial court had granted an exparte temporary injunction in favour of the Plaintiff-Appellant. However after objections were exchanged between the parties, the impugned order has been passed whereby the temporary injunction application has been illegally rejected by the trial court.

Having considered the submission of learned Counsel for the Appellant and perused the record, it was the case of the Plaintiff that he has purchased the house in question out of his own income. While considering the plea at the stage of grant of temporary injunction, the trial court was of the prima facie view that it was purchased from the joint income of the family. It is not denied that the parties belong to the same family and there is no partition to this effect amongst the members of the family. In this background, the trial court has refused to grant an injunction and has also found that the Plaintiff is not in possession of the property in question and therefore, no hardship would be suffered by the Plaintiff in case the injunction is refused. It also found that there is no irreparable loss to the Plaintiff in the construction being raised by the Defendant since it is an addition to the property and its value and because it is joint property, the Defendant will not be permitted to take a plea subsequently that the construction was made by him and he be given extra share. The court, therefore, found that even primafacie case has not been made by the Plaintiff, since the property is jointly owned by the parties who are co-owners /co-sharers of the Plaintiff.

Learned Counsel for the Appellant has cited a decision of the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. v. Sriman Narayan reported in 2002 Allahabad Civil Journal 1396 for the proposition that if an injunction is not granted to preserve the property risk of injury to the Plaintiff is likely. In the mater with respect to the Hindustan Petroleum Corporation Ltd. the Respondent was the licencor of the premises in question where petrol pump existed. The case is distinguishable for the reason that in the present case both the parties are co-owner of the property in question and therefore, the principle for grant of injunction under Order 39 Rule 1 of the Code of CPC laid down by the Supreme Court in Hindustan Petroleum Corporation Ltd. (supra) would not strictly apply in the facts and circumstances of the present case. Particularly when in the normal course injunction cannot be granted against the true owner.

Learned Counsel for the Appellant has also placed reliance on a Division Bench judgment in the case of Smt. Shefali Roy Vs. Hero Jaswant Dass and others, for the same purpose. The Division Bench found that prima facie case, balance of convenience, irreparable loss is a serious question involved and are required to be considered.

Insofar as the aforesaid decision in its application to the present case, it will be seen that the trial court has considered the prima facie case and found it not to be in favour of the Plaintiff. It has also taken into account balance convenience and irreparable loss and recorded a finding against the Plaintiff that he is not in possession. The Plaintiff''s ownership in the property in question being joint, any construction made thereupon will be also to the benefit of the Plaintiff, who is not in possession of the property of which he is co-sharer. Consequently the submission made by learned Counsel for the Appellant to the contrary cannot be accepted and is accordingly rejected.

There is no merit in this appeal. It is accordingly dismissed.

No order is passed as to costs.