SANATAN DHARAM MAHA MANDAL v. GULLO DEVI AND — 1975 DIGILAW 624 (ALL)

CHANDRA PRAKASH, J. This is a plaintiffs revision against the order dated February 28, 1975 allowing the appeal of respondents Nos. 1 to 3 after setting aside the order of the trial Court. The facts leading to this application in revision are not disputed may be narrated as follows: Defendants Nos. 1 to 6 filed an application under Section 145, Cr. P. C. alleging that there was dispute between the defendants Nos. 1 to 6 on one hand and the plaintiff on the other regarding the building known as Saraswati Bhawan and there was an apprehension of breach of peace between the parties. Plaintiff No. 1 Sanatan Dharam Maha Mandal was a Registered Society while plaintiffs Nos. 2 and 3 were its President and Secretary respectively. The learned Magistrate before whom the application under Section 145, Cr. P. C. was filed sent for police report and the police also reported that there was an apprehension of breach of peace. The learned Magistrate passed temporary order to attach the disputed building. Defendants Nos. 1 to 6 were the first party and the plaintiffs were the second party were required to file their respective statement. The Criminal Court then referred the question of possession to the civil court for determination under Sction 145, Cr. P. C. Defendant No. 7 was appointed Sapurdar of the disputed building during the attachment proceedings. Before any finding was received from the civil court the plaintiffs filed a civil suit, No. 71 of 1972 giving rise to this application for a declaration that they were the owners of the disputed building and they were entitled to take possession of the disputed property. The suit as already noted was filed against defendants Nos. 1 to 6 and defendant No. 7 who was the Supurdar during the attachment proceedings. After the institution of the suit plaintiffs applied for temporary injunction restraining the defendants Nos. 1 to 6 from taking possession of the disputed property from defendant No. 7. This temporary injunction was granted. The defendants Nos. 1, 5 and 6 filed objection. in the meantime the criminal court in accordance with the decision of the civil court released the property in dispute in favour of defendants Nos. 1 to 6. The case of the plantiff was that the plaintiff No. 1 which was Registered Society was the owner of the disputed property and the plaintiffs Nos. 1, 5 and 6 filed objection. in the meantime the criminal court in accordance with the decision of the civil court released the property in dispute in favour of defendants Nos. 1 to 6. The case of the plantiff was that the plaintiff No. 1 which was Registered Society was the owner of the disputed property and the plaintiffs Nos. 2 and 3 his President and Secretary were entitled to file the suit. The defence of defendant No. 1 was that his father had constructed the building in suit and the plaintiff No. 1 was not the owner of the disputed building. The defence of defendants Nos. 2 and 6 was that they were residing in the building in dispute on behalf of the defendant No. 1. The trial court after hearing the parties and assessing the documents as well as affidavits before it came to the conclusion that the plaintiffs have prima facie title to the case and therefore it made the injunction order absolute and restrained the defendants Nos. 1 to 6 from taking possession of the property in dispute from defendant No. 7. Against the above order defendants Nos. 1 to 3 filed appeal in the court below and the court below after hearing the parties reversed the order of the trial court and discharged the injunction issued. Against the above order the plaintiffs have come up in revision before me. I have heard learned counsel for both the parties and I have gone through the evidence on record. After giving my anxious consideration I have come to the conclusion that the order passed by the court below cannot be allowed to stand. The plaintiff filed documentary evidence to show that plaintiff No. 1 was a registered society of which plaintiffs No. 2 and 3 were the President and Secretary respectively. Plaintiffs also filed rent notes to show that plaintiffs were the landlord of the disputed building. The plaintiffs further filed previous statement of defendant No. 1. in which he admitted in suit No. 100 of 1947 that his father was not the owner of the disputed property and he was in possession of it as President of the plaintiff No. "l and on behalf of the plaintiff No. 1. This statement gave complete lie to the case of the defendants that the defendant No. 1 was the owner of the disputed building. This statement gave complete lie to the case of the defendants that the defendant No. 1 was the owner of the disputed building. On the other hand it was the admission of defendant No. 1 himself that the plaintiff was the owner of the disputed property. The plaintiff No. 2 filed an affidavit in support of the plaintiffs title and possession of the disputed property. On the other hand defendant No. 3. Nand Lal alone filed a counter affidavit in order to controvert the allegations made by the plaintiff No. 2 in his affidavit. The trial court in the above circumstances was perfectly justified that the plaintiffs had proved his prima jade title to the property and therefore it was right in issuing the injunction. The lower appellate court has not discussed the documentary evidence on record and did not consider the above facts at all in its judgment and has made a passing reference only. The lower appellate court has held that the finding of the trial court is provisional finding merely on the basis of some papers. The finding of the trial court while disposing the injunction application has always to be provisional and prima facie only and since it was based on documentary evidence it was entitled to great weight. The lower appellate court has not held that the conclusion arrived at by the trial court on the basis of documentary evidence before it was not justified. The lower appellate court has further held that the trial court should not have issued the injunction on the basis of provisional finding because the proceedings under Section 145, Cr. P. C. , are more detailed. This was merely a surmise. The criminal court or the civil court on reference under Section 1465 was entitled to look to the question of possession between the parties and not title. While in the suit filed in the civil court, the civil court was entitled to look to the title as well as possession. Further the defendants opposite parties did not file a copy of the order of the Criminal Court even in order to enable the trial court to know the reasons which had 30 weighed with the criminal court. The Civil Court has to proceed and decide the question of injunction on the material submitted before it. Further the defendants opposite parties did not file a copy of the order of the Criminal Court even in order to enable the trial court to know the reasons which had 30 weighed with the criminal court. The Civil Court has to proceed and decide the question of injunction on the material submitted before it. As already noted above even the lower appellate court ha& not set aside the finding of the trial court that the plaintiff had primo facie title to the disputed building. In the circumstances, the finding of the lower appellate court in vacating the injunction order was perverse and cannot be allowed to stand. The lower appellate court failed to exercise its jurisdiction as it did not discuss the documentary and oral evidence in the case at all. The solitary affidavit of Nand Lal defendant No. 3 was insufficient to nullify the documentary evidence filed by the plaintiff in the case and the affidavit filed by the plaintiff No. 3. It was argued on behalf of the applicant that the injunction issued by the trial court amounted to nullifying the order passed by the criminal court, but this should not be permitted. Reliance was placed on the Single Judge ruling reported in Rupo Devi and another v. Ramesh Chand and others (1 ). This ruling does not lay the proposition that in no case an injunction should be issued which may have the effect of interfering with order passed by the criminal court in proceedings under Section 145, Cr. P. C. The very head note of it shows that normally the civil court cannot stay the operation of criminal courts order against which that court has no power to hear the appeal. It follows that in exceptional circumstances a stay order can be granted by civil court. It appears that in the above ruling no injunction was granted against the order of the criminal court because no prima facie case or title of the plaintiff was established in that case. In the present case however the plaintiff established his prima facie title to the disputed building and the title asserted by defendant No. 1 himself in the case was falsified by his previous statement. In my opinion the court below was wrong in discharging the injunction issued by the trial court. In the present case however the plaintiff established his prima facie title to the disputed building and the title asserted by defendant No. 1 himself in the case was falsified by his previous statement. In my opinion the court below was wrong in discharging the injunction issued by the trial court. The application in revision is allowed and the order of the lower appellate court is set aside. The order of the trial court is restored with costs throughout. The file will be sent back to the trial court immediately for expeditions disposal of the case on merits. .