Tarachand and Others vs Pappu and Others

Rohit Arya, J.—This petition under Article 227 of the Constitution of India by defendants'' is directed against the order dated 24/11/2014 passed by the first appellate Court in Mis. Civil Appeal No. 6A/2014 under Order XLIII rule 1 CPC confirming the order dated 01/10/2014 in civil suit No. 34A/2014 passed by the trial Court injuncting the defendants'' No. 1 to 3 from interfering with the possession of the plaintiffs'' over the suit land described in paragraph 1 of the plaint under Order XXXIX Rule 1 and 2 CPC.

Plaintiffs'' have filed a suit for declaration and permanent injunction against the defendants'' in respect of suit land admeasuring 0.152 hectare situated in village Sironj, District Vidisha and also filed an application under Order XXXIX Rule 1 and 2 CPC., with supporting affidavit. Trial Court after receiving reply to the aforesaid application by a detailed order has tested the relief of temporary injunction on three-fold principles, namely; prima facie case, balance of convenience and irreparable loss. Thereafter, with due advertence of the material placed on record exercised the discretionary power judicially in favour of the respondents''/plaintiffs'' and allowed the application under Order XXXIX Rule 1 and 2 CPC.

On appeal, the appellants''/defendants'' contended that the trial Court failed to appreciate the fact that the appellants''/defendants'' were held to be in possession in the earlier suit No. 34A/2012. The same was material and relevant to consider as regards prima facie possession of the appellants''/defendants'' as claimed by them. Hence, the order passed by the trial Court is erroneous and, therefore, unsustainable in the eye of law.

The first appellate Court has discussed the aforesaid aspect of the matter in paragraphs 6 and 7 of the impugned order and has found that in fact, the earlier suit No. 34A/2012 was in relation to altogether different parcels of land, i.e., survey No. 2672 area 1.138 hectare. The same was between Pappu alias Rizwa, Baiah Khan, Irfan Khan and 08 others vs. Sunil and Rajendra. The appellants''/defendants'' were not party to the aforesaid suit. Therefore, observed that neither the defendants'' were party to the aforesaid suit nor the said suit was in relation to the suit property of the instant suit. There is nothing is on record to suggest that on the suit land falling in survey No. 2673 area 0.152 hectare, the defendants''/appellants'' have ever been in possession. There is also no admission in that behalf on behalf of the plaintiffs''. That apart, in the affidavit filed by the plaintiffs''/respondents'', the plaintiffs'' have filed sale deed executed in the name of Narendra Singh and Surendra Singh in respect of survey No. 2673 area 0.152 hectare, survey No. 2674 area 0.974 hectare and survey No. 2675 area 1.758 hectare executed on 26/04/1993. Likewise, in certified copy of khasrapanchshala for the years 1993-94 to 1996-97 were filed wherein suit land falling in survey No. 2673 is recorded in the names of Narendra Singh s/o Laxman Singh and Surendra Singh s/o Jalam Singh residents of Ikodaya as bhumiswamis. The mutation proceedings have also been brought on record. Thereafter, the subsequent khasrapanchshala of the years from 2002-03 to 2006-07 and 2009-10 to 2013-14 are also on record to demonstrate that the names of the plaintiff, Pappu alias Rizwan was recorded in respect of the suit land. Considering this aspect, prima facie case is found to be in favour of the plaintiffs'' and not that of defendants''. Accordingly, balance of convenience and irreparable loss have also been held to be in favour of the plaintiffs'' and injuncted the defendants'' from interfering with the possession of the suit land.

Having perused the orders impugned, this Court is of the view that the trial Court and the appellate Court under Order XLIII rule 1 CPC have not committed any jurisdictional error in exercise of the discretionary power under Order XXXIX Rule 1 and 2 CPC. Hence, no interference is warranted by this Court while exercising the supervisory jurisdiction under Article 227 of the Constitution of India.

It is made clear that any observation made in this order is only with reference to the orders passed by the Courts below under Order XXXIX Rule 1 and 2 CPC., shall have no bearing on the merits of the suit which shall be decided on its own merits by the trial Court. The petitioners are set at liberty to move the trial Court for expeditious disposal of the suit which shall be decided by the trial Court on its own merits, in accordance with law.

Writ petition sans merit and is hereby dismissed with the aforesaid observation.