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2010 DIGILAW 117 (JHR)

Mohammad Akhtar v. Arun Kumar Tiwary

2010-01-25

AMARESHWAR SAHAY

body2010
Order I.A. No. 3773 of 2009 Heard Mr. P.K. Prasad, learned Senior Counsel appearing for the appellants and Mr. V. Shivnath, learned Senior Counsel appearing for the respondents on the point of injunction. .2. In this Interlocutory Application under Order 39 Rule 1 (2) read with Section 151 C.P.C., the Plaintiffs/Appellants have made a prayer to restrain the Defendants/ Respondents from creating third party rights and restraining them from making alienation of the suit property. 3. The Plaintiffs/Appellants filed Title Suit No. 269 of 2008 against the Defendants for declaration of their right, title and interest over the Suit property which, according to the Plaintiffs, was purchased by them through a registered Deed dated 20.12.2007. 4. The further prayer of the Plaintiffs is for confirmation of possession and in the alternative, for recovery of possession. The Plaintiffs also prayed for Decree for perpetual injunction restraining the Defendants not to interfere or cause any kind of obstructions on the basis of Deed of Sale dated 27.3.2001 and 6.9.2005 and they further prayed to declare the said Sale Deed dated 6.9.2005, executed by the Defendant Nos. 1 to 3 in favour of Defendant No. 5 to be not binding upon the Plaintiffs. 5. During the pendency of the Title Suit, the Plaintiffs filed a petition for in-junction praying therein before the Trial Court to restrain the Defendants from proceeding with the construction of the building over the Suit property for which plan has been sanctioned, which has been rejected by order dated 7.2.2009 by holding that no prima facie case is made out for grant of temporary injunction in favour of the plaintiffs and since the plaintiffs have no prima facie case in their favour, the question of balance of convenience does not arise. It was further held that the plaintiffs are not going to suffer such loss which cannot be compensated in terms of money. The Plaintiffs, thereafter, filed Misc. Appeal No. 48/2009 before this Court challenging the order of the Trial Court refusing injunction. The aforesaid Misc. Appeal was finally disposed of on 27.4.2009 after hearing the parties by making certain observations and by directing the Trial Court to dispose of the Title Suit itself as early as possible, preferably within a period of four months. Appeal No. 48/2009 before this Court challenging the order of the Trial Court refusing injunction. The aforesaid Misc. Appeal was finally disposed of on 27.4.2009 after hearing the parties by making certain observations and by directing the Trial Court to dispose of the Title Suit itself as early as possible, preferably within a period of four months. Thereafter, the Title Suit No. 269 of 2008 was finally disposed of by dismissing the Suit against which, the present First Appeal has been filed by the Plaintiffs/Appellants. 6. It is argued on behalf of the appellants that the respondents are making constructions over the Suit property and, therefore, they be restrained from making any further constructions or in the alternative, they be restrained from transferring by sale or otherwise any portion of the building in question, which is being constructed over the Suit property. . 7. According to the appellants, they have good prima facie case and the balance of convenience also lies in their favour and if the injunction is not granted, they would suffer irreparable loss. 8. On the other hand, Mr. V. Shivnath, learned Senior Counsel appearing for the respondents submitted that no case at all is made out for grant of injunction and the Plaintiffs/Appellants have neither any prima facie case nor balance of convenience lies in their favour. He further submitted that the Plaintiffs/Appellants have suppressed the fact that they applied for injunction before Trial Court for grant of injunction but that the Trial Court rejected the said prayer for injunction and the learned Single Judge of this Court also did not grant any relief to the Plaintiffs in the Misc. Appeal filed by the Plaintiffs against the order of the Trial Court refusing to grant injunctions. It is also stated that now the Suit has also been dismissed finally and, therefore, the- Plaintiff/Appellants have no prima facie case in their favour for grant of injunction. He further submitted that after the sanction of plan of the building by Ranchi Regional Development Authority, the respondent nos. 4 to 7, on the basis of sanction plan are making construction of the building and constructions has already been completed up to 90%. He further submitted that after the sanction of plan of the building by Ranchi Regional Development Authority, the respondent nos. 4 to 7, on the basis of sanction plan are making construction of the building and constructions has already been completed up to 90%. He further submitted that the Plaintiffs/Appellants have sup- pressed the fact that the Plaintiffs also filed an application for cancellation of the building plan before the Vice-Chairman, Ranchi Regional Development Authority which was rejected by R.R.D.A. after making local inspection and on the basis of report submitted in that regard. Against such rejection of the objection of the Plaintiffs/Appellants, they have also filed a Writ Application before this Court being W.P.(C) No. 2984 of 2009, which is pending before this Court and, therefore, the Plaintiffs/ Appellants have not approached before this Court with clean hands. 9. Considering the rival contentions of the parties and after going through the findings arrived at by the Trial Court, in my view, no case is made out for grant of injunction for the following reasons:- (1) The Trial Court held that Nand Kumar Tiwary and his nephew sold their entire available area of 28 Kathas to the Defendant Nos. 1 to 3 and the Defendant Nos. 8 to 11, without any right and share, sold the Suit property to the Plaintiffs through the Registered Deed of Sale and that the Defendant Nos. 1 to 3 rightly sold and transferred three Kathas of land in favour of Defendant No.5. It has further been held by the Trial Court that the Plaintiffs did not have valid cause of action for the Suit and they were not entitled to any relief; (2) The prayer for injunction restraining the respondents from making any construction over the Suit land was also refused by the Trial Court, which was not interfered by this Court in Misc. Appeal. (3) The Respondents have already made substantial construction over the Suit property on the basis of plan sanctioned by the competent authority. 10. Therefore, for the reasons stated above, in my view, all the three ingredients for grant of injunctions is totally absent and as such, the application for injunction is rejected.