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2003 DIGILAW 63 (JHR)

ABDUL SATTAR ANSARI v. AZIZ ANSARI

2003-01-13

M.Y.EQBAL

body2003
Judgment : M. Y. EQBAL, J. ( 1 ) HEARD the learned counsel for the parties. The plaintiff-opposite party No. 1 has filed counter affidavit. ( 2 ) THIS civil revision application is directed against the order dated 18-11-2002 passed by 1st Additional District Judge. Bokaro in Misc. Appeal No. 57/2002 whereby he has set aside the order dated 30-8-2000 passed by Munsif bokaro at Chas in title suit No. 88/97 and has allowed the application filed by the plaintiff-respondent under Order XXXIX, Rules 1 and 2, CPC. ( 3 ) THE facts of the case lies in a narrow compass. The plaintiff-respondent, being a displaced person was given employment by bokaro Steel Ltd. His case is that he was allotted a piece of land measuring an area of 10 decimals comprised within plot Nos. 1101, 1099 and 1100. It is alleged that defendant no. 1 was also allotted 12 decimals of adjacent land but he was in illegal possession of the same. Plaintiffs further case is that since defendant No. 1 was trying to encroach upon the land allotted to the plaintiff, a proceeding under Section 144, Cr. P. C. was initiated and later on converted into a proceeding under section 145, Cr. P. C. vide M. P. Case No. 12/ 80 of 1980. The said proceeding was decided and possession of the land in question was declared in favour of the defendant No. 1. The plaintiff, therefore, filed the aforementioned suit for declaration of the title and confirmation of possession and also" for permanent injuncitori. ( 4 ) THE learned Munsif refused to grant temporary injunction by recording the following finding :"it is the fundamental principle of rule of injunction in civil matters that the possession of any party cannot be disturbed by an interim order when the party has already been found in possession by a Court. The plaintiff have also admitted in para 9 of his plaint that the defendant No. 1 was utilizing the land in dispute illegally before allotment of the disputed land in their favour. Thus the possession of the defendant No. 1 has already been admitted by the plaintiff in their plaint although the same have been stated to be illegal and unauthorized. Thus the possession of the defendant No. 1 has already been admitted by the plaintiff in their plaint although the same have been stated to be illegal and unauthorized. Thus from the discussions made above, I found that the possession of the defendant No. 1 has already been declared by S. D. M. Chas and unless the same is set aside or disbelieved, the possession of the defendant as declared cannot be interfered by the order and ad interim injunction. Then I do not find prima facie case in favour of the plaintiff for the purpose of ad interim injunction. 5. While answering the question, balance of convenience I find that, as stated above the balance of convenience is always lies in favour of the persons whose possession has already been declared by the competent Court. At this stage, the court has to concern with only the matter of possession not of title and the possession of the defendant No. 1 has been put in effect by the order of s. D. M. , Chas. Thus the balance of convenience is not in favour of the plaintiff rather it is with the defendant No. 1. 6. So far as irreparable loss is concerned, i found that bythis order, in face of the suit is not being decided and it is not at all be decided in favour of the plaintiff, their possession will be restored at the cost of thedefendant and he will be duly compensated. Thus the loss if any, in future is capable of being compensated in terms of money. Thus the question is also answered against the plaintiffs. 7. Thus, on the basis of the discussions made above, the petition for ad interim injunciton is rejected. " ( 5 ) THE plaintiff aggrieved by the said order filed appeal before the District Judge, Bokaro being Misc. Appeal No. 57/2000. The appellate Court set aside the order passed by the munsif and granted temporary injunction restraining the defendants from interfering with the possession of the plaintiff. " ( 5 ) THE plaintiff aggrieved by the said order filed appeal before the District Judge, Bokaro being Misc. Appeal No. 57/2000. The appellate Court set aside the order passed by the munsif and granted temporary injunction restraining the defendants from interfering with the possession of the plaintiff. It is worth to quote the portion of the order passed by the appellate Court which is as under :"the plaintiff at para 9 of the plaint has admitted the possession of the defenant-utilizing theland of the government without any legal authority before settlement in his favour and after settlement he is coming in possession and has constructed house and has been living there. In view of the documents settlement and the report of the Pleader Commissioner, the plaintiff has got good prima facie case. He has coming in possession and as such balance of convenience lies in his favour. The plaintiff is living in the housewith his family on the basis of the allotment done by the Assistant Director. He will suffer irreparable loss if he is dispossessed from his lawful possession. No document of title is filed on behalf of the defendant/respondent with respect to the suit land. He is simply claiming the possession without any basis. " ( 6 ) THE finding recorded by the appellate court, in my opinion, is wholly illegal and unjustified. As noticed above, the cause of action for filing the suit by the plaintiff was the final order passed under Section 145, Cr PC whereby possession of the defendant was declared. The appellate Court although took notice of the fact that the plaintiff in para 9 of the plaint had admitted the posssession of the defendant over the land in question but merely because possession was without any legal authority, the Court was not right in granting temporary injunction. The learned Munsif correctly applied the principle of law in the matter of grant of temporary injunction. The order of the appellate Court, therefore, can not be sustained in law. ( 7 ) FOR the aforesaid reasons, the revision application is allowed, the order passed by the appellate Court is set aside and the order passed by the Munsif is restored. The order of the appellate Court, therefore, can not be sustained in law. ( 7 ) FOR the aforesaid reasons, the revision application is allowed, the order passed by the appellate Court is set aside and the order passed by the Munsif is restored. ( 8 ) BEFORE parting with this order 1 must observe that this interim order will not at all affect the merit of the case and the Court of munsif while deciding the suit shall not be prejudiced by any of the findings/observations/expressions recorded by this Court or by the court below and the suit shall be decided on its own merit and on the basis of evidence that may be produced by the parties. I also direct the Munsif Bokaro at Chas to take up the hearing of the suit as expeditiously as possible since it is pending for the last 5 years and dispose of the same by passing a reasoned judgment preferably within a period of 4 months from the date of receipt of a copy of this order. Revision allowed. --- *** --- .