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1995 DIGILAW 40 (GUJ)

Kanabhai Bijalbhai Thakore v. Pyarelal Gutjarilal Agrawal

1995-01-21

Y.B.BHATT

body1995
Y. B. BHATT, J. ( 1 ) THE present petitioners are original plaintiffs who filed Civil Suit No. 244/93 against the present respondents. ( 2 ) IT appears that the respondent nos. 3 and 4, who were original defendant nos. 3 and 4, were the owners of a piece of land which was sold to defendant no. 1 by a registered sale deed. Defendant no. 2 also acquired an interest in the said land on account of some act of defendant no. 1 (in respect of which the present petitioners are not explicit ). The petitioners-plaintiffs contended in the suit filed years after the sale deed was executed that they had some interest in the land which was sod by defendant nos, 3 and 4 to defendant nos. 1 and 2, and that therefore, the sale deed executed by the defendant nos. 3 and 4 in favour of defendant nos. 1 and 2 was bad and illegal, inasmuch as the same was behind their back, without their knowledge and since he disposed of their interest in the property. The plaintiffs, therefore, prayed that the said sale deed is not binding on them and the same is, therefore, null and void qua their interest in the property. In the said suit the petitioners-plaintiffs prayed for an injunction by application Exh. 5 seeking to restrain the defendants, their servants, agents, etc. from selling, transferring and/or from entering into possession of the said properly by the use of force. ( 3 ) THE trial court after hearing the parties, dismissed the said application and refused to grant the injunction as prayed for. The plaintiffs, therefore, preferred an appeal being misc. Civil Appeal No. 18 of 1994 before the District Court, which was also dismissed, by judgment and order dated 22nd April, 1994 by the Extra Assistant Judge, Banaskantha, palanpur. ( 4 ) THE plaintiffs-petitioners have, therefore, challenged the dismissal of the said appeal in the present revision. ( 5 ) IT is pertinent to note that although the injunction application Exh. 5 also contains a prayer for issuance of an injunction restraining defendant nos. ( 4 ) THE plaintiffs-petitioners have, therefore, challenged the dismissal of the said appeal in the present revision. ( 5 ) IT is pertinent to note that although the injunction application Exh. 5 also contains a prayer for issuance of an injunction restraining defendant nos. 1 and 2 from forcibly entering into possession of the property which is the subject matter of the sale deed, it appears thai no submissions have been made before cither of the lower courts on the basis that the concerned defendants are yet to take possession of the disputed property. This prayer at least appears to be unsustainable in view of the contentions raised before the lower courts to the effect that if the defendant nos. 1 and 2 build upon the said property, the interest of the plaintiffs would be adversely affected. In fact the concerned defendants have in their reply to the injunction application extensively dealt with the factual aspects of the matter and have given the specific dates on which they have entered into possession etc. ( 6 ) THE trial court while rejecting the plaintiffs injunction application has considered the pleadings of the respective parties as also the material on record and recorded findings of fact to the effect that the plaintiffs have failed to make out a prima facie case or that the plaintiffs will suffer irreparable injury if the injunction is refused and/or that the balance of convenience is in favour of the plaintiffs. The very same findings have also been arrived at by the lower appellate court on merits after hearing the parties. The lower appellate court has also given extensive and detailed reasons for confirming the order of the trial court. ( 7 ) IN the present revision under section 115 of CPC this could would not be justified in interfering with the concurrent findings of fact recorded by the two courts below. Learned counsel for the petitioners is unable to make out any jurisdictional error within the meaning of sub-section (1) of section 115 of CPC. The findings of fact concurrently recorded by the lower courts are findings based on the appreciation of the material on record before the courts below, and appreciation of evidence, whether such appreciation is correct and sustainable or otherwise, does not entail any jurisdictional error. The findings of fact concurrently recorded by the lower courts are findings based on the appreciation of the material on record before the courts below, and appreciation of evidence, whether such appreciation is correct and sustainable or otherwise, does not entail any jurisdictional error. Even otherwise I am satisfied that the findings of fact recorded by the courts below are correct and sustainable. ( 8 ) APART from the aforesaid finding, the petitioners face a further hurdle which cannot be overcome by way of the proviso to sub-section (1) of section 115 of CPC. Obviously clause (a) of the said proviso has no application to the facts of the case i. e. if the injunction had been granted, the same would have finally disposed of the suit Moreover, clause (b) of the said proviso is not of much assistance to the petitioners inasmuch as they are unable to show how the order, if allowed to stand, would occasion of failure of justice or cause irreparable injury to the plaintiffs. This aspect has been considered by both the courts below and both the courts have recorded concurrent findings of fact to the effect that if the injunction is refused the plaintiffs would not suffer any irreparable injury. Thus, while exercising the revisional powers under section 115 of CPC, this court would not be justified in interfering with the concurrent findings of fact. ( 9 ) EVEN otherwise, the jurisdiction of this court under section 115 is discretionary in nature, and on the facts and circumstances of the case I am satisfied that the impugned orders arc reasonable and justifiable, and in consonance with the evidence and material on record and that therefore they require no interference by this court. This revision is. therefore, rejected. Rule is discharged with no order as to costs. Status quo order vacated. .