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Rajasthan High Court · body

2018 DIGILAW 1150 (RAJ)

Ramjas Gurjar v. Girraj Gurjar

2018-05-03

SABINA

body2018
JUDGMENT : SABINA, J. 1. Appellants have filed this appeal under Order 43 Rule 1(r) of Code of Civil Procedure, 1908 (hereinafter referred as "C.P.C."), challenging the order dated 24.10.2013, whereby application moved by the respondents No. 1 to 4 under Order 39 Rule 1 and 2 C.P.C. was allowed and defendants were restrained from alienating the land in question and from interfering in the possession of the plaintiffs. 2. Learned counsel for the appellants has submitted that initially, Kishan Gopi and Roopnarayan defendants No. 1 and 2 were having tenancy rights over the property in question and were in possession of the property. They sold their tenancy rights to defendant No. 3-Babulal. Babulal further sold his tenancy rights in favour of defendants No. 4, 5 and 6. Plaintiffs had sought cancellation of the sale deed executed by Babulal in favour of the appellants. although, plaintiffs had no legal right to challenge the said sale deed. So far as the sale deed executed by defendants No. 1 and 2 in favour of defendant No. 3-Babulal is concerned, the same has not been challenged by anyone till date. 3. Learned counsel for respondents No. 1 to 4 has opposed the appeal and has submitted that the said respondents are in possession of the land for the last about 30 years. Hence, impugned order was liable to be upheld. 4. In the present case, admittedly, defendants No. 1 and 2 were having tenancy rights over the land in question and they executed the sale deed in favour of respondent No. 3 on 22.06.2012. Babulal executed sale deed in favour of the appellants on 27.06.2013. Although, it was the case of the plaintiffs that they were in possession of the land in question, but there is no revenue record available on the file reflecting their possession over the land in question. Written statement was filed jointly by defendants No. 1 to 6. As per the said written statement, possession of the land in question was handed over by defendants No. 1 and 2 to defendant No. 3, at the time of execution of sale deed dated 22.06.2012. Defendant No. 3 in turn handed over the possession of the land in question to the appellants, at the time of execution of sale deed dated 27.06.2013. 5. Defendant No. 3 in turn handed over the possession of the land in question to the appellants, at the time of execution of sale deed dated 27.06.2013. 5. At the time of deciding application for temporary injunction, trial Court is required to take in consideration three aspects, i.e., prima facie case, balance of inconvenience and irreparable loss. 6. Since, in the present case, plaintiffs had failed to place on record any revenue record depicting their possession over the property in question, there is no prima facie case or balance of inconvenience in favour of the plaintiffs for issuance of temporary injunction in their favour. Rather, appellants had purchased the tenancy rights vide sale deed dated 27.06.2013 and as per the seller/defendant No. 3, possession of the property in question had been handed over to the appellants. In case, temporary injunction is granted in favour of the plaintiffs, appellants would rather sufferer an irreparable loss. 7. In the facts and circumstances of the present case, trial Court fell in error in allowing the application for temporary injunction filed by the plaintiffs as there was no prima facie case or balance of inconvenience in their favour. 8. Accordingly, this appeal is allowed. Impugned order dated 24.10.2013 is set aside. Consequently, application moved by the plaintiffs/defendants No. 1 to 4 under order 39 Rule 1 and 2 C.P.C. is dismissed. Record of the trial Court be sent back forthwith.