Sanjay Kumar vs Anil Yadav and Others

Hon''ble Shri Justice Sujoy Paul

In this petition filed under Article 227 of the Constitution, the petitioner has challenged the order Annexure P/1 dated 29.7.2011. The petitioner/plaintiff filed an application under Order 39 Rule 1 and 2 CPC which was decided by the trial Court by order dated 15.12.2010 (Annexure P/2). The trial Court granted interim protection to the plaintiff, against which a Misc. Appeal under Order 43 Rule 1 CPC was filed before the Appellate Court by the defendants/respondents. The Appellate Court by order dated 29.7.2011 has set aside the order passed by the trial Court, against which this petition is filed. I have heard learned counsel for the parties and perused the record.

The trial Court granted injunction on the ground that prima facie case is in favour of the petitioner and if interim order is not granted, he will suffer irreparable loss. The balance of convenience is also found to be in favour of the plaintiff by the trial Court. However, the Appellate Court dealt with the contentions in extenso and opined that plaintiff/petitioner is not in possession. On the basis of a detailed discussion, the Appellate Court opined that the respondents/defendants are in possession. However, it is made clear by the Appellate Court that after recording evidence, actual position can be established, but prima facie it is not established that plaintiff is either in possession or the revenue records reflect his name. It is further held that the revenue records/Khasra Panchshala makes it clear that on the disputed land the defendants are in possession. After marshalling the material on record, the Appellate Court opined that prima facie case is not in favour of the present petitioner. By relying on various judgments of this Court in para 15 of the order, it is opined that for enjoying temporary injunction, one has to prove himself to be in possession, whereas there is no clinching material at this stage to establish that the plaintiff is in possession. On the basis of aforesaid analysis, the Appellate Court opined that all the necessary ingredients for grant of injunction were not in favour of the petitioner and Court below has erred in granting injunction. In the opinion of this Court, the findings given by the Appellate Court by detailed analysis of the material on record are in consonance with law and no perversity could be pointed out in it. No procedural impropriety or jurisdictional error is also pointed out by the petitioner. Accordingly, in view of the settled legal position that this Court is not required to sit as an Appellate Court in Article 227 of the Constitution and in absence of any aforesaid errors, no interference is required to be made. The Court in Annexure P/1 has given plausible reason which does not warrant any interference by this Court. Petition is merit-less and is hereby dismissed.