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2014 DIGILAW 625 (ALL)

Sudhir Kumar v. Shanti Devi

2014-02-19

OM PRAKASH VII, SANJAY MISRA

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JUDGMENT Sanjay Misra & Om Prakash-VII,JJ.: - Heard Sri Kapil Tyagi learned counsel for the defendant appellants. Notice need not be issued to the plaintiff respondents in view of the order being passed herein. 2. The stamp reporter has reported defect in this appeal on non filing certified copy of the formal order. Learned counsel for the appellants states that the matter is very urgent and therefore be heard even though it is reported as a defective appeal. 3. We have considered the submission of learned counsel for the appellants and have permitted him to argue the matter on the urgency which he has vehemently argued and hence we allow the Exemption Application No. 69801 of 2014. Office may give a regular number to this appeal. 4. According to learned counsel for the appellants the Trial Court has granted an exparte interim injunction to the plaintiff respondents whereby restraining the defendant appellants from interfering in the possession of the plaintiff respondents over the property in question. Learned counsel for the appellant has firstly argued that in light of a decision of this court in the case of Kan Constructions and Colonizers Pvt. Ltd. Vs Allan Deo Noronha reported in LAWS (All) 2006 -8-267 an exparte temporary injunction can be granted only after reasons have been recorded therefor. 5. His first submission is that the impugned order does not record any reasons for grant of an exparte temporary injunction and hence requires to be set aside. 6. The second submission of learned counsel for the appellants is that even a primacie case was not made out by the plaintiff respondents and for such purpose he has relied on the Khasra which he has filed as annexure 2 to this appeal. He points out to the Khasra and states that in Khata no. 1214 the name of Mahendra Singh has been entered along with the name of Shanti Devi the plaintiff respondent hence they are co-owners therefore it cannot be held that the plaintiff respondents were entitled to an exparte interim injunction against the defendant appellants who are the sons of Mahendra Singh. He further refers to proceedings before the Sub Divisional Officer, Meerut whereby a dispute between the defendant appellant and plaintiff respondent relating to possession over the plot in question has been going on. On the aforesaid submission he states that the impugned order requires to be set aside. 7. He further refers to proceedings before the Sub Divisional Officer, Meerut whereby a dispute between the defendant appellant and plaintiff respondent relating to possession over the plot in question has been going on. On the aforesaid submission he states that the impugned order requires to be set aside. 7. Learned counsel for the appellant has also relied on a decision of this court in the case of Bau Ram alias Dukhan Vs Munni reported in LAWS (All) 2007-12-178. He submits that an injunction cannot be granted against a co-sharer with respect to Abadi land. According to him the defendant appellants' father was recorded in the Khasra no. 1214 along with the plaintiff respondent hence the grant of exparte injunction was exfacie illegal against a co-sharer. 8. Learned counsel for the defendant appellant also places reliance on a decision of the Supreme Court in the case of A. Venkataubbiah Naidu Vs S. Challappan reported in AIR (SC) 2000-0-3-32 and submits that in identical circumstance the Hon'ble Supreme Court had directed that the parties should maintain statusquo as it prevailed immediately preceding the institution of the suit. 9. Having considered the submission of learned counsel for the appellants and perused the record insofar as the law laid down in the case of Kan Constructions (supra) is concerned it is true that an exparte temporary injunction can be granted only when sufficient reasons have been made out. While perusing the impugned order we find that the reason given by the Trial Court is that the name of the plaintiff respondents is entered in the Khasra and Khatauni which are revenue records and his Abadi is standing thereupon. It has recorded its primafacie satisfaction. The Trial Court has stated that in such circumstance if the defendant appellant is permitted to interfere in the possession of the plaintiff respondent the very purpose of the injunction would be defeated. 10. We have perused the Khasra which has been filed as annexure 2 to this appeal. In the Khasra we find that the Khata no. 1214 having an area of 0.9910 hectare consists of three Gatas. Gata no. 573 having an area of 0.0360 hectare is entered in the name of Mahendra Singh the father of the defendant appellants. This very Khasra indicates that in Khata No. 1214 Gata no. 857 area 0.385 is entered in the name of the plaintiff respondent Shanti Devi. 1214 having an area of 0.9910 hectare consists of three Gatas. Gata no. 573 having an area of 0.0360 hectare is entered in the name of Mahendra Singh the father of the defendant appellants. This very Khasra indicates that in Khata No. 1214 Gata no. 857 area 0.385 is entered in the name of the plaintiff respondent Shanti Devi. While perusing this entry in the Khasra we find that the description of the property for which injunction has been sought in the suit is Khasra no. 1214 (ga) area 0.385 hectare. Clearly a comparative reading of the property described in the plaint and mentioned in the Khasra which has been filed by the defendant appellant undoubtly indicates that the plaintiff respondent was seeking injunction only for an area of 0.385 hectare which is entered as Gata no. 857 in Khata no. 1214. Therefore, the submission of learned counsel for the defendant appellant that a primafacie case was not made out is incorrect. 11. We have gone through the cited judgment of the Hon'ble Supreme Court. In that case the circumstance was that an application under Order 39 Rule 1 and 2 CPCwas filed and an exparte order was passed in the suit. The defendants filed a petition under Article 227 of the Constitution of India and the High Court set aside the order of exparte injunction. In appeal before the Supreme Court it was argued that the petition under Article 227 should not have been entertained. It was held in paragraph 10 of the judgement as quoted below: - "Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition. In the light of the direction issued by the High Court that the trial court should pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law, we may further add that till such orders are passed by the trial court, status-quo as it prevailed immediately preceding the institution of the suit would be maintained by the parties." 12. Clearly in the present case no such circumstance has arisen. Here an exparte injunction was granted by the Trial Court and the defendants have come up in this appeal under Order 43 Rule 1(r ) CPC. 13. The facts of the case which were before the Supreme Court are totally alien to the facts of the present case. In the present case an exparte injunction was granted to the plaintiff respondent and the defendant appellant did not prefer to file any application for vacation of the exparte injunction and has come up in this appeal under Order 43 Rule 1 (r ) CPC which has been entertained on the urgency which he has shown. 14. The submission of learned counsel for the appellant that the parties are co-owners does not appear to have much substance for the reason that on the own showing of the appellant in this appeal the Khasra which has been filed does not record that the appellants or their father Mahendra Singh as joint owners with the plaintiff respondent Shanti Devi. The father of the appellants has been entered in the Khata no. 1214 over Gata no. 573. Clearly they are not co-owners or co-sharer of Gata no. 857 over which the plaintiff respondent alone has been recorded in the Khasra. As such the benefit of the decision in the case of Bau Ram (supra) cannot be given to the appellant. 15. Learned counsel has also relied upon a report submitted by the Tehsildar, Meerut dated 10.01.2014 which has been collectively filed as annexure 5 to the affidavit filed in this appeal. As such the benefit of the decision in the case of Bau Ram (supra) cannot be given to the appellant. 15. Learned counsel has also relied upon a report submitted by the Tehsildar, Meerut dated 10.01.2014 which has been collectively filed as annexure 5 to the affidavit filed in this appeal. According to him the possession of the defendant appellants has been clearly recorded therein. The said submission of learned counsel for the appellant is obviously incorrect for the reason that in this report two Khasras were inspected by the Tehsildar, the first being Khasra no. 1214 and the second being Khasra 1250. In this appeal and in the suit itself the Khasra no. 1214 is involved. Khasra no. 1250 is not involved. The report with respect to the Khasra no. 1214 is quite clear. It states that the area of 0.385 hectare has been entered in the Khasra in the name of Shanti Devi and Sandeep Kumar son of Virendra Kumar who are the plaintiff respondents. It has also been recorded that the entry of bhumidhar in the name of plaintiff is undisputed. The relevant portion of the report is quoted here under: - " vf/kxzg.k ds ckn 'ks"k jdck 0-385gS0 [krkSuh o"kZ 1421&1424 esa 'kkfUr nsoh iRuh fojsUnz dqekj o lUnhi xqIrk iq= fojsUnz dqekj ds uke crkSj ladze.kh; Hkwfe/kj ntZ gqvkA bl izdkj [k0la0 1214 esa fojsUnz dqekj vkfn dk uke vfookfnr : i ls Hkwfe/kjh ds : i es uke vafdr Fkk rFkk 'kkfUr nsoh vkfn }kjk fuLikfnr eq[r;kjsvke fnukad 16-09-2002 ds vk/kkj ij vfxze izdj.k esa iSjoh djus gsrq izkFkhZ vf/kd`r gSA" 16. This report was submitted on an application made by the plaintiff respondents for demarcation and also in pursuance of an order dated 18.07.2013 passed in Writ Petition No. 38437 of 2013. Clearly the plaintiff respondents are the recorded tenure holders having Abadi over the land in dispute. They had made out a primafacie case on the basis of revenue entries especially when it is entered as their Abadi where they are living. Hence primafacie possession is also shown. 17. The defendant appellants at this stage have only shown that they are raising a dispute on possession. When they are not claiming any ownership rights on Gata no. 857 of Khasra no. 1214 but are shown as in possession of Khasra no. 1250 and Gata no. 573 of Khasra no. Hence primafacie possession is also shown. 17. The defendant appellants at this stage have only shown that they are raising a dispute on possession. When they are not claiming any ownership rights on Gata no. 857 of Khasra no. 1214 but are shown as in possession of Khasra no. 1250 and Gata no. 573 of Khasra no. 1214 then they have failed primafacie to establish any possession over Gata no. 857. 18. This appeal has been filed at a stage when the defendant appellants have not even entered appearance in the suit. They have not filed any application/objection to the injunction application of the plaintiff respondents which they are always at liberty to file. 19. For the aforesaid reasons no grounds have been made out for any interference in the impugned order. 20. The appeal therefore has no force. 21. It is accordingly dismissed. 22. No order is passed as to costs.