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2016 DIGILAW 538 (RAJ)

Ganpat Singh v. Tej Singh

2016-04-18

SANGEET LODHA

body2016
JUDGMENT Sangeet Lodha, J. This petition is directed against order dated 5.2.16, passed by the Additional District Judge No.2, Jodhpur Metropolitan, whereby an appeal preferred by the petitioners against the order dated 23.7.10, passed by the Civil Judge(J.D.) No.1, Jodhpur Metropolitan, rejecting an application preferred under Order39, Rule 1 & 2 of the Civil Procedure Code,1908 ("CPC") , stands dismissed. 2. The petitioners filed a suit for permanent and mandatory injunction against the respondents accompanied by an application for temporary injunction under Order 39, Rule 1 & 2 read with Section 151 CPC. The application was contested by the respondents by filing a reply thereto. 3. After due consideration of the rival submissions, the trial court found that prima facie case and balance of convenience is not in favour of the petitioners and accordingly, the application seeking temporary injunction was dismissed. The Appellate Court has declined to interfere with the order passed by the trial court. Hence, this petition. 4. Learned counsel appearing for the petitioners contended that the courts below have seriously erred in observing that the question with regard to legality of patta issued in favour of Bhom Singh shall be decided on the basis of evidence to be led by the parties. Learned counsel submitted that patta issued in favour of Bhom Singh being illegal, the defendant Hukam Singh cannot claim any right over the disputed property on the strength of the sale deed executed in his favour, which is a forged document. Learned counsel submitted that the court below has erred in holding that petitioners are not in possession of the disputed property. Learned counsel urged that the petitioners are still in possession of the property and thus, the courts below have seriously erred in holding that the petitioners have no prima facie case in their favour. 5. I have considered the submissions of the learned counsel and perused the material on record. 6. It is settled law that in the matter of the temporary injunction, the jurisdiction of the appellate court is not coextensive with that of the trial court. 5. I have considered the submissions of the learned counsel and perused the material on record. 6. It is settled law that in the matter of the temporary injunction, the jurisdiction of the appellate court is not coextensive with that of the trial court. The appellate court can interfere with an order of the trial court granting or refusing injunction only when it is satisfied that (i) the trial court has acted contrary to law or (ii) has acted arbitrarily, or (iii) that the finding of trial court regarding the three requirements of grant of injunction are perverse or capricious or (iv) that there has been a misreading of the pleadings of evidence. (vide RSEB v. Mool Chand Jangir, 1993 (3) WLC, 388.) 7. In 'Skyline Education Institute(Pvt.) Ltd. v. S.L. Vaswamin & Anr.' 2010 AIR SCW 628, the Hon'ble Supreme Court after considering its various earlier decisions dealing with the scope of appellate court's power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction observed : "The ratio of above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter, it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity." 8. Thus, in the backdrop of settled position of law as aforesaid, it needs to be considered as to whether the discretion exercised by the court below in refusing to grant temporary injunction in favour of the petitioners/plaintiffs is based on objective consideration of the material placed on record and supported by cogent reasons. 9. A bare perusal of the impugned orders reveal that all the relevant aspects of the matter have been considered by the courts below in their entirety and objectivity. Both the courts have concurrently found that petitioners herein are not in possession of the property, the fact which stands fortified from the Commissioner's report as well. 9. A bare perusal of the impugned orders reveal that all the relevant aspects of the matter have been considered by the courts below in their entirety and objectivity. Both the courts have concurrently found that petitioners herein are not in possession of the property, the fact which stands fortified from the Commissioner's report as well. Indisputably, a patta of the disputed plot was issued by the competent authority in favour of Bhom Ji, who executed the sale deed in favour of Ugam Singh. The case of the petitioners is that Ugam Singh cannot claim any title over the disputed plot inasmuch as, the sale deed executed in his favour is a forged document. Obviously, the question with regard to the document being forged has to be decided by the trial court on the basis of the evidence to be led by the parties and therefore, at this stage, no injunction can be granted in favour of the petitioners, presuming the sale deed executed in favour of Ugam Singh to be a forged document. In this view of the matter, in absence of any material showing prima facie title of the petitioners over the disputed property and their possession thereon, in the considered opinion of this court, the concurrent finding arrived at by the courts below cannot be said to be arbitrary, capricious or perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 10. In view of the discussion above, the petition lacks merits, it is hereby dismissed in limine.