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2005 DIGILAW 855 (MP)

Naresh Seth v. Mahant Krishna Gopal Puri

2005-08-11

A.M.NAIK

body2005
ORDER 1. Heard finally. 2. Appeal is directed against order allowing thereby an application for temporary injunction restraining the defendant-appellant from making construction on the disputed land. Plaintiff-appellant has pleaded that he has been residing in the suit property belonging to Kapil Muni Mahanirwani Panchayati Akhara, Sagar, Earlier, Mahant Anant Narayan Puri was the Mahant of the said Akhara who died on 5.6.1988. Plaintiff has stated that he is Mahant of the entire property belonging to the Akhara and has been managing the same since last number of years. Plaintiff has been realizing rent from about 20-25 tenants occupying various rooms belonging to the said Akhara. The suit property is an open piece of land admeasuring 70ft. x 20ft. The defendant is trying to occupy the suit property by claiming it and making construction over it. Plaintiff has further pleaded that the defendant has no right to make the construction and is liable to be restrained. Decree for perpetual injunction has been sought by the plaintiff-appellant. 3. Plaintiff-appellant simultaneously with the institution of the suit submitted an application for temporary injunction and prayed for grant of restraint order by way of Issuance of temporary injunction. 4. Defendant-appellant submitted his written statement and also replied to the application for temporary injunction. He specifically contended that the suit property forms part of the property owned by Raj Rajeshwar Nagad Narayan Trust. It is contended that the plaintiff is neither Mahant nor is in the management of the said property. It is further submitted that the Court of 1st ADJ, Sagar vide its judgment dated 28.10.1996 passed in Civil Suit No. 20A/1996 has directed for registration of Raj Rajeshwar Nagad Narayan Trust as a Trust. In pursuance of the same, an application was submitted before SDO/Registrar, Sagar which was allowed and the said trust was registered as a public trust by virtue of Order dated 9.6.1997 passed in Case No. 20B/113, 96-97. It is further submitted that the defendant-appellant is the President of the said trust and is making construction after seeking due permission from the Municipal Corporation, Sagar. The amount of Rs. 50,000/- - 60,000/- has already been spent on the construction, which will not cause inconvenience/prejudice to anyone including the plaintiff. It is further submitted that the defendant-appellant is the President of the said trust and is making construction after seeking due permission from the Municipal Corporation, Sagar. The amount of Rs. 50,000/- - 60,000/- has already been spent on the construction, which will not cause inconvenience/prejudice to anyone including the plaintiff. It is specifically contended that plaintiff is neither the owner of the suit property nor is in possession of the same and he is not entitled to a decree for permanent injunction and the suit is liable to be dismissed. A reply was also submitted to the application under Order 39, Rule I of Civil Procedure Code on almost similar lines. 5. The trial Judge after hearing the arguments allowed the application for permanent injunction and passed an order of temporary injunction. Aggrieved by the same; the defendant-appellant has preferred the present appeal. 6. Learned counsel for the defendant-appellant submitted that public trust in the name of Raj Rajeshari Nagad Narayan Trust was registered in pursuance of the judgment dated 28.10.1996 passed by the Court of 1st ADJ, Sagar. The said trust was duly registered and the construction on the disputed property is being made by the defendant-appellant as President of the trust after obtaining due permission from the Municipal Corporation, Sagar. He further submitted that the plaintiff has no locus standi to challenge the order as the three necessary factors requisite for grant of ' temporary injunction are not available with the plaintiff-respondent. In reply the learned counsel for the plaintiff-respondent supported the impugned order. 7. After considering the arguments and the material on record, this Court is of the considered opinion that the impugned order is not sustainable in law and the same is liable to be set aside. 8. It be seen that in paragraphs 1 and 2 of the plaint, that the plaintiff has pleaded that Kapil Muni was Mahant of Mahanirwani Panchayati Akhara and different properties including the suit property was owned and possessed by the said Akhara. Copy of the judgment and decree dated 28.10.1996 passed by the Court of 1st ADJ, Sagar in Civil Suit No. 20A/1996 is on record whereby the properties were held to be of Raj Rajeshwar Nagad Narayan Trust which was also held to be a public and religious trust. Copy of the judgment and decree dated 28.10.1996 passed by the Court of 1st ADJ, Sagar in Civil Suit No. 20A/1996 is on record whereby the properties were held to be of Raj Rajeshwar Nagad Narayan Trust which was also held to be a public and religious trust. Accordingly, the learned 1st ADJ, Sagar has directed for registration of the trust Swami Hanspuri Chela Kapil Muni was one of the defendants in the said suit whose name was deleted on account of his death. The plaintiff-respondent has not placed any authentic document to prima facie establish that the suit property is owned and possessed by the said Panchayati Akhara. Learned trial Judge, too, has observed in paragraph 8 of the impugned order that the disputed property prima facie belongs to the Raj Rajeshwar Nagar Narayan Trust. However, the learned trial Judge seems to have been carried away by the statement contained in the reply of the defendant-appellant that the plaintiff is residing inside the temple. This by itself will not clothe the plaintiff with a right to seek temporary injunction against construction on behalf of the trust, without establishing prima facie case in his favour. 9. Learned counsel for the defendant-appellant submitted that the defendant-appellant is the President of the said trust and the construction was being duly made on behalf of the said trust. Learned counsel for the plaintiff-respondent in his reply submitted that the construction is being made contrary to the bye-laws and resolution of the trust. It may be seen that the plaintiff in paragraphs I, 2 and 4 of the plaint has clearly pleaded that the suit property belongs to the Mahanirwani Panchayati Akhara and the defendant-appellant is trying to grab the suit property by making construction over it. Thus, obviously, the plaintiff-respondent has not brought the suit for protection of the property of the trust. On the contrary, the plaintiff-respondent is claiming this property against the interest of the trust. He has thus, no locus standi to challenge the construction except in the interest of the trust. Since, he has asserted his own title and possession in paragraphs 1, 2 and 4 of the plaint, the suit and the application for temporary injunction cannot be treated for the interest of the said trust. He has thus, no locus standi to challenge the construction except in the interest of the trust. Since, he has asserted his own title and possession in paragraphs 1, 2 and 4 of the plaint, the suit and the application for temporary injunction cannot be treated for the interest of the said trust. Learned counsel for the appellant has been unable to establish locus standi of the plaintiff to seek a temporary injunction against the interest of the trust. 10. As regards the limbs of balance of convenience and irreparable injury, it be seen that there is no sufficient material on record to establish at this stage that the construction will cause any kind of injury to the interest of the public at large who are beneficiaries of the said trust. The plaintiff-respondent has not come forward in the capacity of the beneficiary. His claim, on the other hand, is against the trust itself who is making construction after seeking due permission from Municipal Corporation, Sagar. The plaintiff who himself is acting against the interest of the trust is not within his rights to challenge the construction on the ground of the alleged technical flaw or misuse of the money of the trust. Such ground may be raised only by any of the trustees or beneficiaries or the persons empowered to take care of the management of the trust. It is contended by the learned counsel for the respondent that the Municipal sanction dated 20th October, 2004 was cancelled by order dated 24.12.2004. Keeping in view the said submission. it is made clear that any construction made in contravention of the municipal sanction may be restrained under section 307 (5) of the Municipal Corporation Act and such construction may also be removed through Court or law to the extent of contravention of the Municipal sanction. However, in the absence of prima facie case, the plaintiff under the provisions of Order 39. Rules 1 and 2 of Civil Procedure Code is not entitled to the grant of temporary injunction. 11. In the result, the appeal is allowed and the impugned order is hereby set aside.