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2012 DIGILAW 1167 (MP)

Balram Dixit v. Santan Singh Lodhi

2012-11-08

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. This appeal has been preferred under Order XLIII Rule 1(r) CPC by the plaintiff against the order dated 13.10.2011 passed by learned First Additional District Judge, Narsinghpur in C.S. No. 73-A/2011 dismissing the application for issuance of temporary injunction. 2. The contention of learned counsel for appellant is that in a suit for specific performance of contract filed on behalf of plaintiff/appellant, an application for issuance of temporary injunction was submitted by him on the averment that in the document of agreement of sale, the factum of delivery of possession has been mentioned and if that would be postition, learned Trial Court erred in dismissing the application filed on behalf of plaintiff praying that defendants be restrained from interfering in his possession. 3. However, Shri Saurabh Bhusan Shrivastava, learned counsel for respondents No. 1 and 2/defendents argued in support of the impugned order and submitted that although the factum of delivery of possession has been mentioned in the document but this has been vigorously disputed by the defendents that infact the appellant is in possession of the property. By inviting my attention to the finding of learned Trial Court para 11 it has been put-forth that as per plaintiffs own showing possession was given on the date of execution of document of agreement of sale dated 29.5.2007 but in the later entries of the revenue record the possession of respondents No. 1 and 2 has been shown and therefore learned Trial Court did not commit any error in dismissing the application. In support of his contention, learned counsel has placed heavy reliance on two decisions of Supreme Court, they are Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswani and Anr. AIR 2010 SC 3221 and Kashi Math Samsthan and Anr. V. Srimad Sudhindra Thirtha Swamy and Anr. AIR 2010 SC 296 and prayed that this appeal be dismissed. 4. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. 5. True, the factum of delivery of possession has been shown in the document of agreement of sale but there is no other material in order to indicate that thereafter the appellant is infact in possession of the property in question. The factum of execution of document of agreement of sale has been denied by the defendants. 5. True, the factum of delivery of possession has been shown in the document of agreement of sale but there is no other material in order to indicate that thereafter the appellant is infact in possession of the property in question. The factum of execution of document of agreement of sale has been denied by the defendants. Thus, at the most it can be said that the plaintiff is having a prima facie case in his favour. However, still it is to be shown by him that prima facie he is also having possession. If the possession was delivered to plaintiff on 29.5.2007 certainly he would have done something to get his name recorded towards possession in the revenue record. However, in the revenue Court, no proceedings have been initiated by the plaintiff in order to record his possession. On the contrary , the defendants No. 1 and 2 have filed revenue record throughout from 1997 to 2011 indicating his possession. The recent Khasra panchasala of year 2007-08 to 2011-12 indicates that name of defendent No. 1 has been entered as bhumiswami and further it has been mentioned that he is obtaining the crops from the field. In this view of the matter, learned Trial Court by correctly applying the princile for grant of temporary injunction, rightly dismissed the application since it is found that plaintiff is not in possession of the suit property. 6. The scope of appellate Court under Order XLIII Rule 1(r) is limited and this Court will not exercise appellate power to set aside the order until and unless the order is not based upon the principles for grant of temporary injunction. The grant of temporary injunction is discretionary relief and if learned Trial Court after due diligence and applying correct principle envisaged under the law rejected the application, I am of the view that learned Court below did not commit error warranting any interference by this Court. The decision of Skyline Education (supra) has rightly been placed reliance by learned counsel for respondents No. 1 and 2. 7. For the reasons stated hereinabove I do not find any illegality in the impugned order. This appeal is accordingly dismissed with no orders as to cost.