ORDER 1. Instant writ petition has been filed by the petitioner against the order dated 4-10-2012 passed by the learned Additional District Judge, Ramganj Mandi, Kota, in Appeal No. 22/2012, whereby he allowed the appeal and set-aside the order dated 17-9-2012 passed by the learned Civil Judge (JD) Ramganj Mandi, Kota, in T.I. Application No. 41/2012 titled as Bherulal v. ASI Company. 2. The petitioner herein is the plaintiff in the suit. The suit had been filed for obtaining a decree of permanent injunction by restraining the defendant-respondent No.2, the Associated Stone Industry (Kota), from conducting any mining operation without the written permission of the plaintiff on the land measuring 0.71 hectare Khasra No. 226 (old Khasra No. 17), situated at Village Kumbkot, Tehsil, Ramganj Mandi, District, Kota. 3. It is the case of the plaintiff petitioner that he is the legal khatedar tenant of the said land and earlier in the year 1990, the defendant-respondent No.2 presented a petition under Section 89(3)(4) of the Rajasthan Land Revenue Act, upon which the Court of learned SDM, Kota vide order dated 7-7-1990 settled the compensation and allowed the defendant-company to carry out mining activities on the aforesaid land. 4. The plaintiff-petitioner asserted in the suit that as the defendant-company did not carry/operate any mining activity on the said land even after a lapse of period of 22 years of passing of the order dated 7-7-1990 by SDM; thus according to the plaintiff petitioner, the permission granted to the defendant-company came to an end after a lapse of 12 years and hence, the plaintiff petitioner asserted that the order passed by the learned SDM Kota, dated 7-7-1990 has become inoperative/ineffective being time barred. 5. The plaintiff-petitioner further asserted in the plaint that the defendant-company had obtained the order of the SDM acting in connivance with the officers and asserting false facts. The plaintiff-petitioner pleaded that on 11-7-2012 the defendant-company endorsed an entry in the Revenue records with respect to the mining permission granted vide order dated 7-7-1990. Hence, the plaintiff petitioner sought a decree for permanent injunction, restraining the defendant-company from carrying out any mining activities upon the aforesaid land without the written permission of the plaintiff-petitioner. Along with the plaint, the plaintiff-petitioner also moved an application for temporary injunction praying to restrain the defendant-company from operating any mining activity on the impugned land. 6. Hence, the plaintiff petitioner sought a decree for permanent injunction, restraining the defendant-company from carrying out any mining activities upon the aforesaid land without the written permission of the plaintiff-petitioner. Along with the plaint, the plaintiff-petitioner also moved an application for temporary injunction praying to restrain the defendant-company from operating any mining activity on the impugned land. 6. The defendant-company submitted written statement denying the allegations of the plaintiff-petitioner. The defendant-company asserted that it was carrying out mining activities lawfully in accordance with law, upon the suit land and the plaintiff-petitioner was not in possession of the said land/property and the amount of compensation was paid by cheque to erstwhile khatedar tenant Bhawana and Mangya, therefore, the plaintiff-petitioner was not entitled to any injunction. On similar lines, the defendant-company also submitted a reply of the temporary injunction application moved by the plaintiff-petitioner. The trial Court while deciding the application for temporary injunction moved by the plaintiff, restrained the defendant-company vide its order dated 17-9-2012 from carrying out any mining activity upon the suit land in question till the disposal of the suit, against which, the defendant-company preferred a Civil Misc. Appeal, which was allowed by the Appellate Court on 4-10-2012. 7. Hence, this writ petition by the plaintiff before this Court. 8. Learned counsel for the petitioner Mr. Kaleem Ahmed Khan, submits that the order passed by the learned Appellate Court is per se contrary to the decision rendered by the Division Bench of this Court in the Case of State of Rajasthan & Ors. v. National Limestone Co. (P) Ltd., Reported in 2008 (5) WLC (Raj) 681: (AIR 2008 (NOC) 2115). He further submits that the Appellate Court acted without jurisdiction in allowing the appeal filed by the respondent-Company. He further submits that the entire approach of the Appellate Court is against the law and trial Court had rightly allowed the application filed by the plaintiff-petitioner for temporary injunction. 9. On the other hand, Ms. Pallavi Mehta, learned counsel appearing on behalf of the respondent No.2 submits that the appellate Court had not committed any illegality or material irregularity in passing the impugned order. 10. Having heard the learned counsel for the parties and the material on record as also the impugned orders, according to me the law with regard to temporary injunction application is well settled. 10. Having heard the learned counsel for the parties and the material on record as also the impugned orders, according to me the law with regard to temporary injunction application is well settled. The Hon’ble Apex Court in catena of cases has held so, which this Court would like to deal with. 11. In the case of Makers Development Services Private Limited v. M. Visvesvaraya Industrial Research and Development Centre (2012) 1 SCC 735 : ( AIR 2012 SC 437 ), the Hon’ble Apex Court has held as under:- It is settled law that while passing an interim order of injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908, the Court is required to consider three basic principles, namely, (a) prima facie case, (b) balance of convenience and inconvenience and (c) irreparable loss and injury. In addition to the above mentioned three basic principles, a Court, while granting injunction must also take into consideration the conduct of the parties. It is also established law that the Court should not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequences depending upon the nature thereof and in dealing with such matters the Court must make all endeavours to protect the interest of the parties. 12. Similar view has also been expressed by the Hon’ble Apex Court in the case of Kishorsinh Ratansinh Jadeja v. Maruti Corporation and others (2009) 11 SCC 229 : ( AIR 2009 SC 2882 ). 13. In the case of Dalpat Kumar and Another v. Prahlad Singh and others, (1992) 1 SCC 719 : ( AIR 1993 SC 276 ) the Hon’ble Apex Court has held that prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised bona fide which needs investigation and a decision on merits. The Hon’ble Apex Court in the case of Delhi Municipality v. Suresh Chandra, AIR 1976 SC 2621 , has held as under:- 10. Only prima facie case is a substantial question raised bona fide which needs investigation and a decision on merits. The Hon’ble Apex Court in the case of Delhi Municipality v. Suresh Chandra, AIR 1976 SC 2621 , has held as under:- 10. It also seems that the attention of the learned Judge was not directed towards Section 41(h) of the Specific Relief Act, 1963 which lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust. Learned Counsel for the appellant Corporation points out that there was the ordinary machinery of appeal, under Section 169 of the Delhi Municipal Corporation Act, 1957 open to the assessee respondent. It had not even been found that the respondent was unable to deposit the necessary amount before filing the appeal. However, we abstain from deciding the question whether the suit is barred or not on this ground. All we need say is that this, consideration also has a bearing upon the question whether a prima facie case exists for the grant of an interim injunction. 14. The Hon’ble Apex Court in the Case of Seema Arshad Zaheer and Ors. v. Municipal Corpn. of Greater Mumbai (2006) 5 SCC 282 , has held that where the lower Court acts arbitrarily, capriciously or perversely in the exercise of its discretion, the appellate Court will interfere. Exercise of discretion by granting a temporary injunction when there is no material or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. When we refer to acting on no material (Similar to no evidence), we refer not only to cases where there is total dearth of material, but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. 15. In the case of State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12 the Hon’ble Apex Court has held that an interim relief can be granted only in aid of and ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. 16. 15. In the case of State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12 the Hon’ble Apex Court has held that an interim relief can be granted only in aid of and ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. 16. The Hon’ble Apex Court again in the case of Cotton Corporation of India Limited v. United Industrial Bank Limited and Others (1983) 4 SCC 625 : ( AIR 1983 SC 1272 ), has held but power to grant temporary injunction was conferred in aid or as auxiliary to the final relief that may be granted. If the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly be granted. 17. In the case of State of Orissa v. Madan Gopal Rungta ( AIR 1952 SC 12 ) (supra), the Constitutional Bench of the Hon’ble Apex Court has clearly spelt out the contours within which interim relief can be granted. The Court said that an interim relief could be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights, in a suit or proceeding. The Court held that if this be the purpose to achieve which power to grant temporary relief is conferred, it is inconceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief ipso facto the temporary relief of the same nature cannot be granted. 18. The position which emerges from the above quoted observations of the Hon’ble Supreme Court is that in the matter of grant of temporary injunction, while considering prima facie case, the prima facie maintainability of the suit itself also play an important role and if the Court prima facie is of the opinion, that the applicant has equally efficacious remedy available for the redressal of his grievance, or the final relief in the suit cannot be granted in the terms sought for because the Statute bars granting of such relief, ipso facto temporary relief/injunction of the same nature cannot be granted. 19. 19. Testing the instant case in the light of above legal proposition, it emerges that the plaintiff-petitioner has merely instituted a suit for injunction, he wants to restrain the defendant-company from carrying out mining activity in the suit property. In his pleadings, he has not stated with certainty that all throughout during the last 22 years, he remained in possession of the suit property, to show his possession on the suit property, no documentary evidence is submitted by him. On the other hand, the defendant company has categorically taken a stand that they are in possession of the property and carrying out mining activity and paying huge amount by way of dead rent and royalty to the Government. The plaintiff-petitioner has not asserted at all that possession was never delivered to the defendant company in compliance of the order dated 7-7-1990 passed by the learned SDM Kota. Thus, after critically analyzing the above facts, prima facie, the plaintiff-petitioner is not found to be in possession of the suit property. A person, who is not in possession is generally not entitled to seek injunction of such a nature. Apart from this, mere claiming of injunction without claiming possession, prima facie hits the maintainability of the suit, which is a pivotal factor while considering the prima facie case of the plaintiff-petitioner. Besides this, the plaintiff-petitioner asserted that the compensation settled vide order dated 7-7-1990 passed by the SDM Kota was extremely low, but the fact is that for the last 22-23 years, neither the plaintiff nor his predecessors-in-interest challenged the order dated 7-7-1990. From a bare perusal of this order dated 7-7-1990 it emerges that the predecessors-in-interest of the plaintiff petitioner demanded compensation @ Rs. 10,000/- per bigha whereas the defendant-company was willing to pay the amount of compensation @ Rs. 8,000/- per bigha and ultimately, the learned SDM settled the amount of compensation @ Rs. 10,000/- per bigha as asserted by the predecessors of the plaintiff. The predecessors were ready and willing to surrender the land in question, if the amount of compensation was paid @ Rs. 10,000/- per bigha. Their statement on oath was recorded and they gave their consent to surrender the land in question for mining activity of the respondent company. It is not the case of plaintiff-petitioner that this settled amount of compensation was not paid to the predecessors. 10,000/- per bigha. Their statement on oath was recorded and they gave their consent to surrender the land in question for mining activity of the respondent company. It is not the case of plaintiff-petitioner that this settled amount of compensation was not paid to the predecessors. The plaintiff-petitioner claims that this order dated 7-7-1990 ipso facto became in-operative/ineffective after a lapse of 12 years. But neither the said order contained such recital nor the plaintiff-petitioner cited any such rule/circular in this regard. Thus, the first condition of prima facie case is not found in favour of the plaintiff-petitioner. The Authority relied upon by the petitioner State of Rajasthan & Ors. v. National Limestone Co. (P) Ltd. (supra) is of no assistance to the plaintiff-petitioner. In the case before the Division Bench of this Court, the issue was validity of circular dated 15-11-1995. The Single Bench, of this Court had quashed this circular holding that although no objection certificate is required from the owner/khatedar of the land but that is required after execution of the lease deed and before entering into the land. The Division Bench set-aside the order passed by the Single Bench and upheld the validity of the circular dated 15-11-1995. The resultant effect was that where the land was not owned by the Government, every application for grant or renewal of a mining lease upon such land was required to be accompanied by a statement in writing that the applicant has, obtained surface rights over the area or has obtained the consent of the owner for starting mining operations. 20. In the instant case, the defendant-company had obtained surface rights for mining operations by virtue of order dated 7-7-1990. Thus, the Appellate Court was well within its jurisdiction in interfering with the order passed by the trial Court, and had rightly rejected the application filed for temporary injunction filed by the plaintiff-petitioner, and this Court is not inclined to exercise its jurisdiction conferred under Articles 226 and 227 of the Constitution of India, the writ petition is liable to be dismissed. 21. Before parting with this order, it is incumbent to mention that the observations made in this order by this Court are only tentative observations, limited for the purpose of scrutinising the order passed on the application for temporary injunction filed by the plaintiff-petitioner. 21. Before parting with this order, it is incumbent to mention that the observations made in this order by this Court are only tentative observations, limited for the purpose of scrutinising the order passed on the application for temporary injunction filed by the plaintiff-petitioner. The trial Court is fully entitled to decide the suit of the plaintiff-petitioner in accordance with law on merits without being influenced by the observations made hereinabove. 22. Resultantly, the writ petition as well as the stay application are dismissed. 23. There is no order as to costs. Petition dismissed.