Delhi High Court
Nihal Singh And Ors. vs Chandari Devi And Ors. on 4 December, 2001
Author: Mahmood Ali Khan
Bench: Mahmood Ali Khan
JUDGMENT Mahmood Ali Khan, J.
1. This appeal is directed against the order of an Additional District Judge dated 3.8.1992 by which he has dismissed the application of the appellants filed under Order 39 Rule 1 and 2 CPC.
2. Briefly stated, the facts are that the appellants filed a civil suit against the respondents for partition of plot of 500 sq.yard situated in khasra No. 32 in village Basant Nagar, New Delhi shown in red colour in the site plan annexed to the petition by meets and bounds. The allegations in the plaint were that Ram Phal, father of appellant no.1 and grand-father of appellants nos.2 to 5 was resident of village Basant Nagar, Mehrauli. he owned several properties including the suit property. he died leaving the appellants and the respondents as his legal heirs. Ram Phal had five sons as mentioned in the pedegree given in para-1 of the plaint and each of the son owned 1/5th share in his property. Appellant no.1, as such, had 1/5 share and appellant nos.2 to 5 had 1/5th share in the suit property. The respondents have raised construction on a portion of the suit property forcibly.
3. Respondents 1, 2, 5, 6 and 9 filed a joint written statement. They, inter alia, pleaded that all the sons of Ram Phal had separated during the life-time of their father. Ram Phal died more than 50 years back. All his sons possessed separated properties. Plaintiff no.1 is also possessing a plot adjoining to the disputed land and has constructed a house thereon. he had not disclosed as to from where he got that property. The plaintiffs filed a civil suit for permanent injunction against these respondents which was dismissed by Subordinate Judge by order dated 1.4.1989 and the appeal against eh order also failed. The suit was also held to be bad for partial eviction and non-joinder of three daughters of late Madan Lal as one of the sons of Ram Phal. It was denied that Ram Phal was owner of khasra No.32 and it was stated that he was only a co-sharer in it. The plot in suit was owned and possessed by his brother Girwar who died about nine years back. He had gifted this land and also his share in the shamlat deh in the year 1955 for which mutation No.275 was sanctioned in the Revenue record in favor of Khazan Singh, predecessor-in-interest of respondents 1 and 2. Khazan Singh died in June, 1984. Khazan Singh thus became the owner and was in possession of the suit land and he remained in possession of it till his death. He also had a house adjoining to the suit land across the passage. Respondents 1 and 2 were using the plot for tethering their cattles and as a storage space. The suit plot is in exclusive possession of respondents 1 and 2 and their predecessor without any claim or right from the appellants or any other heir of Ram Phal and if in case the appellants had any right in it, that stood extinguished by adverse possession.
4. Along with the suit, the appellants also filed an application under Order 39 Rule 1 and 2 praying that respondent should be restrained from selling, assigning or parting with possession of the suit land during the pendency of the suit.
5. This application was also likewise resisted by the respondent son the pleas raised in the written statement.
6. The Additional District Judge before whom the case was pending, considered this application and heard the parties on it. He did not find any prima facie case and balance of convenience in favor of the appellants and also held that the appellants would not suffer irreparable loss and damage which could not be compensated by cost. He, therefore dismissed the application.
7. The appellants felt aggrieved and have come up in this appeal.
8. The argument of counsel for the appellants is that Ram Phal, the common predecessor-in-interest of the parties, owned several properties in village Basant Nagar and he also owned property bearing khasra No.32. It is stated that the suit land measuring 500 sq.yards was owned by Ram Phal who died leaving behind five sons. Only Nihal Singh, appellant no.1 is alive. The other sons have died. One of the sons was the predecessor-in-interest of appellants 2 to 5 and the respondents were the descendants of other three sons. It was stated that appellants no.1 and appellants 2 to 5 owned 1/5th share each in the suit plot. The respondents tried to raise construction over it so a civil suit for injunction was filed against them. The trial court held that the suit was not maintainable and suit ought to have been filed for partition of the property. In the appeal the order of the trial court was upheld. Accordingly, the appellants filed the instant suit for partition of that property. The appellant is entitled to grant of ad interim injunction against the respondent provided he is able to make out a prima facie case and also show that refusal of grant ad interim injunction, as prayed for, will result in irreparable loss and injury to them and that the balance of convenience was in favor of granting the injunction. The counsel for the appellants has referred to judgment in Chhatu Ram Bhadani and Ors. v. State of Bihar, , Gangubai Bablya Chaudhary and Ors. v. Sitaram Bhalchandra Sukhtankar and Ors., and Sahab Dayal Chamanlal v MCD, 1976 Rajdhani Law Reporter 550 and has argued that in case a third party interest is created in the suit property it would cause complication and the appellants would suffer loss which could not be compensated by cost.
9. The arguments are controverter by the respondents and it is stated that mere allegations made by the appellants that the plot in suit was a joint property of the parties will not make out a prima facie case for grant of injunction. It is stated that Ram Phal and his brother Girwar were co-sharer in khasra No.32 and that it is not the case of the appellants that Ram Phal was owner of entire land in khasra No.32. According to them Ram Phal was only co-sharer with his brother Girwar. According to the counsel for the appellants Ram Phal owned several properties in this khasra and it is also a case of the appellants that the heirs of Ram Phal were owning and possessing different properties. It is not disclosed as to when did they come to on separate properties. Attention was drawn to the boundary of the suit plot given in the petition which showed that the appellant's son also owned an adjoining plot. It is submitted that the suit plot was owned by Girwar, brother of Ram Phal who gifted it to Khazan Singh and this mutation was effected in favor of Khazan Singh in the Revenue record. It is also stated that Khazan Singh died in June, 1984. He was predecessor-in-interest of respondents 1 and 2 and the respondent no.2 had inherited the property from him and they are in possession of it. Lastly, it was argued that it is a case for partial partition so the suit was not maintainable. The onus was upon the appellants to make out a case for grant of ad interim injunction and show that a prima facie case existed for grant of ad interim injunction. Apart from making a bald allegation in the petitioner that the appellants and respondents were the joint owners of this plot, the appellants have not produced any documentary evidence in support of their case. On the other hand the appellant has admitted that other properties of Ram Phal were in possession of his heirs separately. But he is silent on the question as to how his son came to own the adjoining land. According to respondents, in fact, it is the appellant himself who is owner and is in possession of that land.
10. The contentions which should weigh with the court in deciding the application for grant of ad interim injunction are well settled. They are (i) whether the plaintiff has made out a prima facie was meaning thereby that there is a bonafide contention between the parties or a serious question to be tries, (ii) whether the balance of convenience is in favor of the plaintiff, that is to say whether it would cause greater inconvenience to the plaintiff if the ad interim injunction is not granted than the inconvenience to which the defendant will be subjected if it is granted, and, (iii) whether the plaintiff would suffer irreparable loss and injury if the prayer for grant of temporary injunction is refused. All these three considerations must be conjointly satisfied before the order of ad interim injunction is granted by the court.
11. The Supreme Court in Gujarat Rottling Co. and Ors. v. Coca Cola Co and Ors., has held as under:-
"The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favor of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favor at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated."
12. Let us now apply the proposition of law laid down by the Supreme Court in the above cited case on the facts of the case in hand. The appellants that land in Khasra No.32 was owned by Ram Phal. He do not claim that entire land of that Khasra belonged to him. Even the khatoni for the year 1947-48 relied upon by them show that Ram Phal was not owner of land of entire Khasra No.32. Moreover the appellants themselves allege that after the death of Ram Phal his heirs had separated and divided the land and they were in occupation of separate pieces of land. But when did they partition the property, among whom it was partitioned, which heir got which portion of the land has not been revealed. Even it is not explained how the suit land was left undivided when rest of the land was partitioned/decided between heirs of Ram Phal. Land adjoining the disputed land is owned allegedly by the son of the appellants as per site plan filed by him. How he happened to own that land is also not explained. Therefore, prima facie there is no facts and circumstances to suggest that Ram Phal was owner of the suit land other than the bald allegation of the appellants. On the other hand the respondents are in possession of the suit land and have also built upon it. For all these reasons the learned Additional District Judge was justified in holding that no case is made out by the appellant prima facie for grant of interlocutory order. The respondents who are in possession of the suit property will suffer greater inconvenience if ad interim injunction is granted than the appellant if interlocutory order is declined as it is their bald allegation that suit land is joint property of the parties. When the appellants failed to make out a prima facie case and balance of convenience being in their favor there is no question of the appellants suffering irreparable injury if interim injunction is refused. Moreover there is no allegation that the appellants have any intention to transfer the property which they themselves are using.
13. In Chhatu Ram Bhadani and Ors. v. State of Bihar, cited by the appellant the plaintiff had filed suit for restraining the defendant permanently from taking any steps for auction sale of their personal properties. They filed application for ad interim injunction restraining the defendant from selling the suit properties and taking further steps in the matter. It was held:
"Having heard the learned counsel for the parties were are of the opinion that substantial questions of law and fact have to be decided in the suit itself and that it cannot be said that the plaintiffs have got a prima facie case in their favor for final adjudication. The conclusion of the learned trial Jude seems to be also that there is a prima facie case for trial. On the question of balance of convenience of this side or that, the learned Subordinate Judge has not given any reason for his conclusion that the balance of convenience was not in the plaintiff's favor. We do not think that the conclusion of the learned Subordinate Judge is sound, as the properties of the appellants, which are on sale, are said to be two houses at Jhumri Tilaiya in the district of Hazaribagh. If these properties are sold now and purchased by stranger to this litigation, and ultimately the plaintiffs' suit succeeds, there may be difficulty in the way of the plaintiff's recovering possession of the houses from strangers. On the other hand the defendant of the suit is entitled to interest on the amount of the loan mentioned in paragraph 4 of the defendant's show cause petition, and when the dues are realized, the defendant of the suit will also be entitled to realize interest. Therefore, on the assumption that there is a prima facie case to go to trial, we are of the view that the balance of convenience lies in retaining the status quo, so that an order of ad interim injunction should have been passed by the trial court in this case."
14. As such the facts were quite distinguishable in that case. The ratio of the judgment cannot be applied to the present case.
15. In Gangubai Bablya Chaudhary and Ors. v. Sitaram Bhalchandra Suktankar and Ors., which is also relied upon by the appellants there were disputes about title of a land. The plaintiff and defendants were found in possession of half portion of the disputed land. Application for grant of ad interim injunction was filed. The Supreme Court on peculiar facts of the case held:
"if the respondents are allowed to put up construction by the rule of the F.S.I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude a fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9000 square metres of land on which they can put up construction."
16. The facts of the present case are distinguishable because the respondents are in exclusive possession of the suit land and the appellants have not produced any document to prima facie establish their title or legal interest in the suit land.
17. In Sahab Dayal Chamanlal v. MCD 1976 Rajdhani Law Reporter 550 the appellant filed a civil suit challenging a demolition notice issued u/s.343 of DMC Act. An application for ad interim injunction was filed. Allegation was made that the demolition order was without hearing the plaintiff. This court observed:
"While considering the question if the appellant had a prima facie case for interim protection the trial court had to look at the allegations in the plaint, the material on record in support of the allegations, and to find if the allegations and whatever material may be available, disclosed a case which required investigation. It was not the function of the trial court at the preliminary stage to proceed to decide the question or to expect the appellant to prove the allegations by documentary or other evidence."
18. This case was for demolition by a municipal body and on the basis of evidence and material produced temporary injunction was granted.
19. In Wander Ltd. and Anr. v. Antox India P. Ltd. 1990 (Supp) Supreme Court Cases 727, has observed as under:-
"The appeals before the Division Bench were against eh exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matte at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."
20. The above case law has fully supported the view which this court has taken.
21. As regards the argument of the appellants that the learned Addl.District Judge was wrong in holding that the appellants were not entitled to the grant of ad interim injunction because the previous suit for injunction was dismissed by the court suffice to say that from the order it appeared that the Additional District Judge had simply taken note of these facts in his order. The previous suit and appeal were dismissed holding that the appellants ought to have filed a suit for partition instead of an injunction suit. The application is not dismissed because the previous suit was dismissed as not maintainable.
22. For the reasons above, there is no merit in the appeal. It is dismissed. CMs 1157,1158,2412/95 are accordingly disposed of.