CHHITOO HIRAJEE v. SAKHARAM UMDU — 1981 DIGILAW 11 (MP)

JUDGMENT : ( 1. ) THIS revision by the plaintiffs Chhitoo and his sons is against the order dated 16-3-1977, whereby the learned Additional District Judge, mandleshwar, has affirmed the order passed by the trial Court dated 7-12-1976, whereby the learned trial Judge rejected their application for issuance of a temporary injunction against defendant-non-applicants and allowed the application submitted by the defendant-non-applicants for issuance of a temporary injunction against the plaintiff-applicants. ( 2. ) THE facts material For the decision of this revision are as under: The plaintiff-applicants herein have brought the suit for declaration of their title and for issuance of a permanent injunction in respect of agricultural land situated in village Rawat-Pipliya, Tahsil Barwaha, on the allegations that they are Bhumiswamis in possession of the land in suit and that the defendant-non-applicants threatened to dispossess them. In the suit, the plaintiff-applicants submitted an application for issuance of a temporary injunction against the defendant-non-applicants on the ground that they want to dispossess them (the plaintiffs) by taking the law into their hands and that if interim if junction to protect their possession is not issued, then they will be forcibly dispossessed from the suit land. This application was,opposed by the defendant-non-applicants on the ground that they are in possession of the suit land and that they have been recorded as tenants in possession of the suit land with effect from the year 1963-1964 upto the date of institution of the suit. Accordingly, the plaintiffs are not entitled to the issuance of a temporary injunction. The defendant-non-applicants also submitted an application separately for issuance of a temporary injunction against the plaintiff-applicants on the ground that the plaintiffs are attempting to dispossess them. Therefore, they be restrained from interfering with their possession. The application submitted by the plaintiff-applicants was dismissed by the trial Court and that submitted by the defendant-non-applicants was allowed restraining the plaintiff-applicants herein from interfering with their possession over the land in dispute. Aggrieved by this order the plaintiff-applicants preferred an appeal, which has been dismissed. Aggrieved by this order the plaintiff-applicants have filed this revision. ( 3. The application submitted by the plaintiff-applicants was dismissed by the trial Court and that submitted by the defendant-non-applicants was allowed restraining the plaintiff-applicants herein from interfering with their possession over the land in dispute. Aggrieved by this order the plaintiff-applicants preferred an appeal, which has been dismissed. Aggrieved by this order the plaintiff-applicants have filed this revision. ( 3. ) IN this revision Shri S. D. Sanghi, learned counsel for the plaintiff-applicants contended that the impugned order has been arrived at in an illegal manner because the presumption of continuity of possession enures in favour of the plaintiff-applicants and the same has not been taken into consideration by the learned Additional District Judge; that the predecessor-in-title of the plaintiffs and thereafter the plaintiffs have been recorded as persons in possession in Column No. 12 in the Khasras of the years 1954 to 1962-63; that omission of the entry in Column No. 12 in the Khasras of subsequent years is attributable to order by the Collector in not showing the persons in possession in Column No. 12; that the question of title being wholly irrelevant for the present purposes, the learned Additional District Judge acted illegally in treating that the plaintiffs have not succeeded in showing prima facie case because their claim regarding title to the land appears to be doubtful; that the admission of the defendant-non-applicants contained in the first information report lodged by them on 23-4-1976 regarding the factum of possession of the suit land being with Sakharam and that contained in their application submitted to the Collector dated 19-5-1976 have been over-looked by the learned additional District Judge. Consequently, the application submitted by the revision applicants has been rejected illegally in exercise of jurisdiction. So far as the application submitted by the defendant-non-applicants is concerned, it was contended by Shri Sanghi that the application is neither tenable under rule (1) or Rule (2) of Order 39, Civil Procedure Code, nor the grant of injunction can be sustained under section 151, Civil Procedure Code. ( 4. So far as the application submitted by the defendant-non-applicants is concerned, it was contended by Shri Sanghi that the application is neither tenable under rule (1) or Rule (2) of Order 39, Civil Procedure Code, nor the grant of injunction can be sustained under section 151, Civil Procedure Code. ( 4. ) SHRI R. G. Waghmare, learned counsel for the defendant-non-appli-cants argued in support of the impugned order and contended that none of the contentions advanced by Shri Sanghi appear to have any force and that the Khasras of the years after 1964 upto the date of institution of the suit do not show that the plaintiffs are persons in possession and that the statutory presumption attached to the correctness of the Khasras entries by virtue of section 117 of the M. P. Land Revenue Code, 1959, enures to the benefit of the defendant-non applicants; that the first-information-report dated 23-4-1976 and/or the defendants application dated 19-5-1976 cannot be used as substantive evidence; and that since both the Courts below have concurrently recorded a finding to the effect that the defendant-non-applicants are in possession and that the applicants-plaintiffs are not in possession, and the impugned orders are not amenable to a challenge in revision under section 115, Civil Procedure code. ( 5. ) HAVING heard the learned counsel for the parties I have come to the conclusion that this revision deserves to be allowed. ( 6. ) THE learned Additional District Judge appears to have found that there is no prima facie case in favour of the plaintiffs on the ground that they on the one hand claimed to be Bhumiswamis of the suit land and oh the other hand claimed to have acquired the status of Bhumiswamis by virtue of adverse possession. In order that a prima facie case may be regarded to exist in favour of a party, it is not necessary that that party should establish its title at the stage when the application for issuance of a temporary injunction is taken up for consideration. The question of title is wholly irrelevant at this stage of the suit. Lawfulness or otherwise of the character of possession is not relevant for deciding an application for issuance of a temporary injunction. What is relevant is the factum of possession. The question of title is wholly irrelevant at this stage of the suit. Lawfulness or otherwise of the character of possession is not relevant for deciding an application for issuance of a temporary injunction. What is relevant is the factum of possession. Where the plaintiff brings a suit for perpetual injunction restraining the defendant from disturbing his possession over the land and applies for a temporary injunction restraining the defendant from disturbing that possession, what the Court is to see is whether the plaintiff was in fact in possession of the land in dispute on the date of filing of the suit. An inquiry into this fact does not involve any question as to the right of any partys possession of the suit land, if the plaintiff was in fact in possession of the land on the date when he filed the suit and if the defendant was attempting to oust him from the land, the plaintiffs prayer for a temporary injunction cannot be refused. This is what has been held by P. V. Dixit J. (as he tike was) in Narbada Prasad v. Bira, 1960 MP L J Note 87= 1961 J L J Short Note 345. Das and Ray JJ. , in Brajendra Nath Ghosh v. Smt. Kashi Bai, AIR 1946 pat. 177. have ruled on the point thus: "in order to make out a prima facie case necessary for granting an interlocutory injunction, the plaintiff need not establish his title. It is enough if he can show that he has a fair question to raise as to the existence of the right which he alleged and can Satisfy the Court that the property in dispute should be preserved in its present actual condition Until such question can be disposed of. The Court must also, before disturbing any mans legal right, stripping him off any of the rights with which law has clothed him, be satisfied that the probability is in favour of his case ultimately failing in the final issue of the suit. A mere existence of a doubt as to the plaintiffs right to the property does not itself constitute a sufficient ground for refusing an injunction though it is always a circumstance which calls for the attention of the Court. " [emphasis supplied. ] ( 7. ) ACCORDINGLY, the approach of the learned Additional District Judge on the point is illegal. A mere existence of a doubt as to the plaintiffs right to the property does not itself constitute a sufficient ground for refusing an injunction though it is always a circumstance which calls for the attention of the Court. " [emphasis supplied. ] ( 7. ) ACCORDINGLY, the approach of the learned Additional District Judge on the point is illegal. Moreover, he has overlooked the aspect of law that a party can take alternative pleas, although they maybe inconsistent. In the plaint, the plaintiffs have raised serious questions as to fact and law to be tried. In this case the plaintiff Chhitoo and his sons claimed to be in possession of the suit land and for the purpose they rely on the Khasra entries in column No. 12 showing Shrikrishna, their predecessor-in-title to be the person in possession and thereafter one of the plaintiffs, namely, Chhitoo as a person in possession of the suit land. The Khasras of the years 1954 to 1963 record the name of Shrikrishna and after him Chhitoo as persons in possession. If in Khasras of latter years the entry showing Chhitoo (plaintiff-applicants) to be in possession disappears, the omission by itself is not enough to destroy the presumption of continuity of possession. I am fortified in this view by the ratio of Jaiprakash v. Smt. Lilabai, AIR 1963 Bom. 100 . wherein it has been held that a state of affairs which is shown to exist at one time in the past is presumed to continue as it was. The presumption of continuity can be drawn both forward and backwards and can be so drawn in view of the circumstances of the present case, especially in view of the stand taken by the defendant-non-applicants that the plaintiff-applicants have been some-times in possession and sometimes out of possession throughout the relevant period and also in view of their admission contained in the first-information-report and the application submitted to the Collector, referred to above. This presumption stands further fortified by the affidavits submitted on behalf of the plaintiff-applicants. ( 8. ) ACCORDINGLY, once it is shown by the plaintiff-applicants that they were in possession at one time in the past, it has to be presumed that that state of affairs continued as it was. It was for the defendant-non-applicants accordingly to show ex-facie by what process known to law they came into possession of the suit land. ( 8. ) ACCORDINGLY, once it is shown by the plaintiff-applicants that they were in possession at one time in the past, it has to be presumed that that state of affairs continued as it was. It was for the defendant-non-applicants accordingly to show ex-facie by what process known to law they came into possession of the suit land. This aspect of the case does not appear to have been considered by the learned Additional District Judge at all. The omission of the entries in favour of the plaintiff-applicants is explained by them by relying on the report of the Patwari of the Halka concerned dated 4-9-1976 and that of the Revenue Inspector submitted to the Tahsildar, wherein it is stated by them that it was under the orders of the Collector that the entries were not continued and were omitted. The cause of omission and / or disappearance of the entries in the name of Chhitoo from column No. 12 appears to be attributable to some order passed by the Collector. Even if the reports of the Patwari and that of the Revenue Inspector are kept out of consideration, the admission made by the defendant-non-applicant, Sakharam in the first-information-report lodged by him on 23-4-1976 and that contained in his application submitted to the Collector on 19-5-1976 is to the effect that the plaintiff-applicant Chhitoo is in possession, although the grievance made is that he has obtained the possession forcibly. The use of the first-information-report is objected to by Shri Waghmare on the ground that the same cannot be treated as a substantive piece of evidence. Not intending to conclude the questions ex-facie, there does not appear to be any reason to prevent its user for showing the admission regarding the factum of possession being with chhitdo, applicant herein. The suit has been instituted on 16-7-1976. The admission that Chhitoo is in possession is not only contained in the aforesaid first-information-report but also the application submitted by Sakharam to the Collector dated 19-5-1976, as stated above. It is curious that the learned additional District Judge used the first-information-report for concluding that the defendants are ex-facie Bhumiswamis of the suit land, but has not cared to look into the admission regarding the factum of possession, which is crucial for decision of the matter at hand. ( 9. It is curious that the learned additional District Judge used the first-information-report for concluding that the defendants are ex-facie Bhumiswamis of the suit land, but has not cared to look into the admission regarding the factum of possession, which is crucial for decision of the matter at hand. ( 9. ) THE legal effect of the admission contained in the first-information-report as well as the aforesaid application has been overlooked by the learned Judges of the Courts below. There is no explanation whatsoever on behalf of the defendant-non-applicants on the basis of which it may be regarded that the admission so made by them cannot be used against them for the present purposes. ( 10. ) IT is the law well established that in order to sustain a grant of injunction three pillars must co-exist, (i) prima facie case, (2) balance of convenience and, (3) irreparable injury. As observed above, prima facie case is in favour of the plaintiffs inasmuch as ex-facie they are in possession of the suit land on the date of initiation of proceedings, as discussed above. Issuance of temporary injunction to protect their possession, therefore, was necessary. Withholding of interim injunction in such a situation will throw them at the mercy of the defendants, who by taking the law in their hands, want to dispossess them from the suit land. The balance of convenience also is in favour of the plaintiff-applicants, inasmuch as the defendants not being in possession even on their own admission referred to above, they will not suffer any injury. But if the injunction is not granted, the plaintiffs will suffer greater injury inasmuch as they apprehend to be dispossessed at the hands of the defendants. In cases where the defendant threatens the plaintiff to dispossess Forcibly, issuance of a temporary injunction is necessary both in law as well as in equity. The plaintiffs have filed the suit for claiming issuance of perpetual injunction also on the hypothesis that they are in possession. As held by this Court in Ramswarup v. D. Kale, 1950 N L J Note 34. ordinarily a temporary injunction should be granted to protect the possession of the plaintiff; otherwise the suit will be liable to be rendered infructuous. Dispossession by itself constitutes irreparable injury. ( 11. As held by this Court in Ramswarup v. D. Kale, 1950 N L J Note 34. ordinarily a temporary injunction should be granted to protect the possession of the plaintiff; otherwise the suit will be liable to be rendered infructuous. Dispossession by itself constitutes irreparable injury. ( 11. ) FACED with this situation Shri Waghmare placing reliance on the ratio of Hindustan Aeronautics v. Ajit Prasad, AIR 1973 SC 76 . contended that in view of the concurrence of the Courts below in rejecting the application submitted by the applicants herein and allowing that submitted by the defendant-non-applicants, no interference can be made by this Court in a revision under section 115, Civil Procedure Code, more so because the jurisdiction of this Court is curtailed by the Civil Procedure Code (Amendment) Act No. 104 of 1976, by introducing two provisos in sub-section (I) of section 115, Civil Procedure code. This argument is attractive oh the face of it but has no merits. In the case of Hindustan Aeronautics (supra) relied on by Shri Waghmare, it cannot be spelled out that even if the first appellate Court has exercised its jurisdiction either illegally or with material irregularity, this Court is precluded from exercising its revisional jurisdiction. So far as the effect of introduction of the two provisos (a) and (b) to sub-section (I) of section 115, Civil Procedure code, is concerned it appears that in order to exercise the revisional jurisdiction not only a jurisdictional error is to be shown to vitiate the order but in addition it has also to be shown that either the impugned order is of such a nature which would finally dispose of the suit or that if the impugned order is allowed to stand, it would occasion a failure of justice or cause irreparable injury to the party against whom it was made. ( 12. ) IN this case, the manner in which the learned Judge of the appellate court has passed the impugned order is illegal. The challenge in this case is not regarding the propriety or correctness of the Order, but to the manner in which it has been arrived at. The impugned order, on face of it, discloses a clear case of acting in exercise of jurisdiction illegally and / or with material irregularity. The challenge in this case is not regarding the propriety or correctness of the Order, but to the manner in which it has been arrived at. The impugned order, on face of it, discloses a clear case of acting in exercise of jurisdiction illegally and / or with material irregularity. If the impugned order is allowed to stand, it will occasion a failure of justice and cause irreparable injury to the plaintiff-applicants, as discussed above. Accordingly, the orders passed by the learned Additional district Judge and the trial Court rejecting the application submitted by the revisionapplicants cannot be allowed to stand. ( 13. ) THIS brings me to the question of grant of a temporary injunction in favour of the defendant-non-applicants. The suit giving rise to this revision has been brought by the plaintiffs for declaration of title and issuance of a permanent injunction on the hypothesis that they are in possession, as stated above. Now, the first question is: can the defendant in such a suit maintain an application under Order 39, Rules 1 and 2 or section 151, Civil Procedure code and the grant of injunction in their favour can be sustained or not. Rule 1 of Order 39, as it stood at the relevant time provided that: "i. Where in any suit it is proved by affidavit or otherwise- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders. " In clause (a) of Rule 1 of Order 39 the use of the expression any party is certainly wide enough to cover the plaintiff as well as the defendant. But the right to maintain an application is confined to those cases where the property in dispute in the suit is in danger of being wasted, damaged or alienated or wrongfully sold in execution of a decree. But the right to maintain an application is confined to those cases where the property in dispute in the suit is in danger of being wasted, damaged or alienated or wrongfully sold in execution of a decree. In view of the wording of clause (b)of Rule 1 of Order 39, it cannot be argued successfully that an application by the defendant can be regarded to be maintainable under it. In the instant case the defendant non-applicants have not come with any of the grievances that the property in dispute is either being wasted, damaged or alienated or wrongfully sold in execution of a decree. The sole ground on which they have moved the application is that the plaintiffs are trying to interfere with their possession. Accordingly, neither their application can be regarded to be maintainable nor grant of injunction can be sustained under Rule 1 of Order 39. This is also the view taken by Bhave J. in Mohd. Hafizkhan v. Smt. Naziban Bibi, 1973 J L J Note 114. ( 14. ) THE grant of an injunction in their favour cannot be sustained under order 39, Rule 2, Civil Procedure Code. Rule 2 of Order 39, provides that: "in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. . . . . . . . . . " On the language of Rule 2, there is no room for argument that injunction can be claimed or granted in the present case under Rule 2 of Order 39, Civil procedure Code in favour of the defendant-non-applicants. This is also the view taken in K. B. Singh v. Madhabi Devi, AIR 1962 Manipur 55. . . . . . " On the language of Rule 2, there is no room for argument that injunction can be claimed or granted in the present case under Rule 2 of Order 39, Civil procedure Code in favour of the defendant-non-applicants. This is also the view taken in K. B. Singh v. Madhabi Devi, AIR 1962 Manipur 55. on the point as under: "grant of such injunction cannot be justified even under Order 39, rule 2 because an injunction against interference with possession can be claimed only by a plaintiff to the suit and that too only under Order 39, rule 2 in a suit which is for restraining the defendant from committing a breach of contract op other injury of any kind. " ( 15. ) IN order to resist the aforesaid conclusions, Shri Waghmare placed reliance on the ratio of Shivkami Achi v. Narayana Chettiar, AIR 1939 Mad. 496 . Sugandabai v. Sulubai, AIR 1975 Kar. 137 . and Jagannathsingh v. Shivnarayan, 1978 (2) MP W N 185. I am afraid that none of the aforesaid cases is available to the defendant-non-applicants in the circumstances. The ratio of Shivkami Achi (supra) turns on construction of clause (a)of Rule 1 of Order 39, Civil Procedure Code Accordingly, it. cannot be harnessed by the non-applicants in their service. The ratio of Sugandabai (supra) instead of supporting the defendant-non-applicants runs counter to them. The principles under which a defendant can seek and obtain an order of temporary injunction against the plaintiff have been stated in para 3 thereof thus: "now the principles, under which a defendant may seek and obtain an order of temporary injunction against the plaintiff are stated in Collison v. Warren, (1901) 1 Ch. 812. , where Buckley, J. after referring to a number of earlier decisions of the English Courts, quoted Lopes, L. J. in (1824) 2 Ch. 541, at p. 545:-"the question is this-whether the defendant can move for an injunction against the plaintiff without filing a counter-claim or issuing a writ in a cross-action. In my opinion, he can in some cases, but only in cases where the defendants claim to relief arises out of the plaintiffs cause of action, is incidental to it. 541, at p. 545:-"the question is this-whether the defendant can move for an injunction against the plaintiff without filing a counter-claim or issuing a writ in a cross-action. In my opinion, he can in some cases, but only in cases where the defendants claim to relief arises out of the plaintiffs cause of action, is incidental to it. " Buckley J. also referred to the decision of Davey L. J. in the same case where it is stated thus :- "in my opinion, it must be relating to or arising out of the relief sought in the action which is before the Courts, and that any other injunction cannot properly be granted in the action. the principles stated in the above decision have been followed by this court and it is only in cases where the defendants claim to relief arises out of the plaintiffs cause of action or is incidental to is that he can ask for a temporary injunction against the plaintiff. " (Emphasis supplied)Now, in the instant case, the cause of action on which the plaintiffs have brought the suit and the cause of action stated by the defendants are different. The cause of action stated by the plaintiffs is said to have arisen on 30-6-1976; whereas that stated by the defendant-non-applicants in their written-statement is said to have arisen on 13-7-1976. Thus, the defendants claim to relief of interim injunction does not and cannot be regarded to have arisen out of the plaintiffs cause of action or incidental to it. In the case of jagannathsingh (supra), the defendant was found to be in possession of the suit land on the date of the suit. This makes the ratio thereof inapplicable to the present situation. ( 16. ) NOW, the further question which has to be examined is: whether it is a case of grant of interim injunction in exercise of inherent powers. In view of the ratio in Manoharlal Chopra v. R. B. R. R. Seth Hiralal, A I R 1962 SC 527. , the courts have certainly power to issue a temporary injunction in exercise of inherent powers, but that power has to be exercised on showing that extraordinary circumstances exist necessitating exercise of that power. In the instant case, as observed above, the plaintiff-applicants are not ex-facie in possession of the suit land on the date of initiation of proceedings. , the courts have certainly power to issue a temporary injunction in exercise of inherent powers, but that power has to be exercised on showing that extraordinary circumstances exist necessitating exercise of that power. In the instant case, as observed above, the plaintiff-applicants are not ex-facie in possession of the suit land on the date of initiation of proceedings. Accordingly, the grant of injunction in their favour cannot be sustained both on the grounds that the application at their instance was not maintainable and secondly, that they being not ex-facie in possession of the suit land, were not entitled to the issuance of a temporary injunction. ( 17. ) IN view of the aforesaid discussion, this revision succeeds and is allowed. The impugned orders passed by the learned Additional District judge as well as that passed by the trial Court are hereby set aside. The application submitted by the plaintiff-applicants herein is allowed for issuance of a temporary injunction and the defendant-non-applicants are hereby restrained from interfering with the possession of the plaintiff-applicants over the land in dispute by taking the law into their hands and without resorting to the due process of law. The application submitted by the defendant-non-applicants is hereby dismissed. In the circumstances, I direct the parties to bear their own costs. Revision allowed.