High Court

Judgment

1. Heard Sri Dinesh Kumar Mishra, learned counsel for the petitioner and Sri Anurag Shukla, learned counsel, who has put in appearance on behalf of respondent No.1.

2. The instant petition has been preferred under Article 227 of the Constitution of India assailing the order dated 06.01.2025 passed by District Judge, Sultanpur in Misc. Civil Appeal No. 31/2024, whereby the appeal under Order XLIII Rule (1) (r) C.P.C. preferred by the

petitioner was dismissed affirming the order dated 27.11.2024 passed by Civil Judge (Junior Division), Kadipur, District Sultanpur in Original Suit No. 756/2019, whereby an application preferred by the petitioner under Order 39 Rule (1) C.P.C. was rejected.

3. Submission of learned counsel for the petitioner is that the petitioner had instituted a Suit seeking a decree of permanent injunction wherein he had impleaded the respondent No.1 as well as the respondent No.2 as the defendants. It was pleaded that the disputed property which has been shown by the letters A,B, C, D is part of Plot No. 357M measuring 0.126 hectare situated in Village- Kaithawan, Pergana-.Aldemau, Tehsil-Kadipur, District Sultanpur, which has been in possession of the petitioner since the time of his ancestors. It was also stated that over the disputed property in question 2 the petitioner had rights along with the private respondent No.2, however, since he was not available, hence he has been impleaded as the proforma defendant in the Suit so also in the appeal as well as in this petition.

4. It was stated that the defendant No.1 of the Suit is in possession of his own plot No. 32, which is separate from Plot No. 357 M, hence he has no right or interest in the land belonging to the petitioner and since the defendant No.1 has been making attempt to encroach upon the land of the plaintiffs and further disturbing the petitioner hence a decree of permanent injunction was sought to restrain the defendant No.1 from interfering in the possession of the plaintiff over the property in question. An Application under Order 39 Rule 1 C.P.C. was also moved to the aforesaid effect.

5. It is further submitted by the learned counsel for the petitioner that trial court by means of order dated 27.11.2024 rejected the application for temporary injunction primarily on the ground that since the plot No. 357M was a minjumla plot and there are other co- sharers in the said plot, who have not been impleaded and this prevailed in the mind of the court while rejecting the application.

6. It is further submitted that the trial court observed that the petitioner had a prima facie case as that was established by referring to the revenue documents indicating that the name of the petitioner along with the respondent No.2, was duly recorded, but failed to grant injunction, which is not in sound exercise of jurisdiction. It has been urged that at the time when an application under Order 39 Rule 1 C.P.C. is under consideration, it is only the prima facie case, balance of convenience and irreparable injury has to be seen. The court is not required to hold a mini trial and, if the court finds that prima facie, a 3 triable issue is involved, the court ought to have granted the injunction, which has not been done. Accordingly, the order dated

27.11.2024 is the bad in the eyes of law. It is further urged that even the appellate court while considering the appeal of the petitioner observed that the prima facie case is established but again it declined to grant the injunction affirming the findings of the trial court and the appellate court also fell in the same error, as committed by the trial court. For the aforesaid reasons, it is urged that the impugned orders are bad and the petitioner is entitled to an interim injunction.

7. Sri Anurag Shukla, learned counsel for the private respondent No.1 has disputed the aforesaid submission and has pointed out that it is incorrect to say that the respondent No.1 is having rights over the property bearing Plot No. 32. It is urged that the specific case of the respondent No.1 was that he is in possession of Plot No. 357M on the basis of an agreement. He has a house built of "khaprail", which with passage of time has been in a dilapidated condition and, therefore, it was pulled down to raise construction over the same. It is urged that in the process to raise construction, about 16 pillars had already been erected but with a mala fide intent and in order to harass the defendant, the plaintiff-petitioner instituted the Suit. It is urged that the trial court also got an inspection done of the property in question, wherein it revealed that there was 16 pillars raised by the respondent No.1 and he was in possession and there was no possession or the rights of the petitioner. It is urged that taking note of the aforesaid facts, the court have recorded a categorical finding that the petitioner did not appear to be in possession, accordingly it rejected the application for injunction and no error has been committed by the trial court or the appellant court. Consequently, the petition deserves to be dismissed. 4

8. Having considered the aforesaid submissions and from perusal of the material available on record, this Court finds that so far as the name of the respondent No.1 having been recorded in the revenue record is concerned, the same is not in dispute. A copy of the Khatauni has been brought on record as Annexure No. 4 and taking note of the aforesaid that both the trial court as well as appellate court noticed that the prima facie case was existing for the plaintiff, however, it is not only a prima facie case, which is important, but the other two important ingredients are required for grant of injunction i.e. balance of convenience and irreparable injury, which too has to be established. There is no mention in the plaint regarding the fact that the defendant of the Suit has raised any constructions. At the time when the inspection was made 16 pillars were found. This has been taken note by the appellant court. Even though, the petitioner had filed objections to the Commissioner Report, a copy of which has been brought on record as Annexure No.8, but there is no denial of the fact regarding 16 pillars, which has been erected over the land shown as disputed property. It is not in dispute that the trial court and the first appellate court had taken note of the contention that the pillars could have been erected only when the defendant was in possession and for the said reason, declined to grant injunction. The fact whether there are other co-sharers, who have not been impleaded may not be relevant at this stage, but nevertheless a fact which is not disputed is that the defendant No.1 has specifically claimed that he has in possession on the part of Plot No. 357M. It is also an undisputed fact there is no partition regarding the said Plot No. 357M. Since in absence of any partition and there being contradictory stand taken by both the plaintiff as well as defendant regarding the nature as well as the property in question, are issues of fact which have to be decided on the evidence led by the parties. 5

9. Considering the aforesaid, this Court does not find that the reasons, which have been recorded in the impugned orders suffers from any error, which may persuade this Court to entertain this petition, which lacks merit.

10. Since the Suit is pending before the trial court since, 2019, this Court deems appropriate, that the trial court be directed to consider and decide the Suit expeditiously. Learned counsel for the parties shall cooperate and ensure that Suit is decided at the earliest without taking undue adjournments.

11. With the aforesaid, this Court does not find that there is any merit in the petition. It is accordingly dismissed. Costs are made easy. Order Date :- 14.5.2025 Arvind

petitioner was dismissed affirming the order dated 27.11.2024 passed by Civil Judge (Junior Division), Kadipur, District Sultanpur in Original Suit No. 756/2019, whereby an application preferred by the petitioner under Order 39 Rule (1) C.P.C. was rejected.

3. Submission of learned counsel for the petitioner is that the petitioner had instituted a Suit seeking a decree of permanent injunction wherein he had impleaded the respondent No.1 as well as the respondent No.2 as the defendants. It was pleaded that the disputed property which has been shown by the letters A,B, C, D is part of Plot No. 357M measuring 0.126 hectare situated in Village- Kaithawan, Pergana-.Aldemau, Tehsil-Kadipur, District Sultanpur, which has been in possession of the petitioner since the time of his ancestors. It was also stated that over the disputed property in question 2 the petitioner had rights along with the private respondent No.2, however, since he was not available, hence he has been impleaded as the proforma defendant in the Suit so also in the appeal as well as in this petition.

4. It was stated that the defendant No.1 of the Suit is in possession of his own plot No. 32, which is separate from Plot No. 357 M, hence he has no right or interest in the land belonging to the petitioner and since the defendant No.1 has been making attempt to encroach upon the land of the plaintiffs and further disturbing the petitioner hence a decree of permanent injunction was sought to restrain the defendant No.1 from interfering in the possession of the plaintiff over the property in question. An Application under Order 39 Rule 1 C.P.C. was also moved to the aforesaid effect.

5. It is further submitted by the learned counsel for the petitioner that trial court by means of order dated 27.11.2024 rejected the application for temporary injunction primarily on the ground that since the plot No. 357M was a minjumla plot and there are other co- sharers in the said plot, who have not been impleaded and this prevailed in the mind of the court while rejecting the application.

6. It is further submitted that the trial court observed that the petitioner had a prima facie case as that was established by referring to the revenue documents indicating that the name of the petitioner along with the respondent No.2, was duly recorded, but failed to grant injunction, which is not in sound exercise of jurisdiction. It has been urged that at the time when an application under Order 39 Rule 1 C.P.C. is under consideration, it is only the prima facie case, balance of convenience and irreparable injury has to be seen. The court is not required to hold a mini trial and, if the court finds that prima facie, a 3 triable issue is involved, the court ought to have granted the injunction, which has not been done. Accordingly, the order dated

27.11.2024 is the bad in the eyes of law. It is further urged that even the appellate court while considering the appeal of the petitioner observed that the prima facie case is established but again it declined to grant the injunction affirming the findings of the trial court and the appellate court also fell in the same error, as committed by the trial court. For the aforesaid reasons, it is urged that the impugned orders are bad and the petitioner is entitled to an interim injunction.

7. Sri Anurag Shukla, learned counsel for the private respondent No.1 has disputed the aforesaid submission and has pointed out that it is incorrect to say that the respondent No.1 is having rights over the property bearing Plot No. 32. It is urged that the specific case of the respondent No.1 was that he is in possession of Plot No. 357M on the basis of an agreement. He has a house built of "khaprail", which with passage of time has been in a dilapidated condition and, therefore, it was pulled down to raise construction over the same. It is urged that in the process to raise construction, about 16 pillars had already been erected but with a mala fide intent and in order to harass the defendant, the plaintiff-petitioner instituted the Suit. It is urged that the trial court also got an inspection done of the property in question, wherein it revealed that there was 16 pillars raised by the respondent No.1 and he was in possession and there was no possession or the rights of the petitioner. It is urged that taking note of the aforesaid facts, the court have recorded a categorical finding that the petitioner did not appear to be in possession, accordingly it rejected the application for injunction and no error has been committed by the trial court or the appellant court. Consequently, the petition deserves to be dismissed. 4

8. Having considered the aforesaid submissions and from perusal of the material available on record, this Court finds that so far as the name of the respondent No.1 having been recorded in the revenue record is concerned, the same is not in dispute. A copy of the Khatauni has been brought on record as Annexure No. 4 and taking note of the aforesaid that both the trial court as well as appellate court noticed that the prima facie case was existing for the plaintiff, however, it is not only a prima facie case, which is important, but the other two important ingredients are required for grant of injunction i.e. balance of convenience and irreparable injury, which too has to be established. There is no mention in the plaint regarding the fact that the defendant of the Suit has raised any constructions. At the time when the inspection was made 16 pillars were found. This has been taken note by the appellant court. Even though, the petitioner had filed objections to the Commissioner Report, a copy of which has been brought on record as Annexure No.8, but there is no denial of the fact regarding 16 pillars, which has been erected over the land shown as disputed property. It is not in dispute that the trial court and the first appellate court had taken note of the contention that the pillars could have been erected only when the defendant was in possession and for the said reason, declined to grant injunction. The fact whether there are other co-sharers, who have not been impleaded may not be relevant at this stage, but nevertheless a fact which is not disputed is that the defendant No.1 has specifically claimed that he has in possession on the part of Plot No. 357M. It is also an undisputed fact there is no partition regarding the said Plot No. 357M. Since in absence of any partition and there being contradictory stand taken by both the plaintiff as well as defendant regarding the nature as well as the property in question, are issues of fact which have to be decided on the evidence led by the parties. 5

9. Considering the aforesaid, this Court does not find that the reasons, which have been recorded in the impugned orders suffers from any error, which may persuade this Court to entertain this petition, which lacks merit.

10. Since the Suit is pending before the trial court since, 2019, this Court deems appropriate, that the trial court be directed to consider and decide the Suit expeditiously. Learned counsel for the parties shall cooperate and ensure that Suit is decided at the earliest without taking undue adjournments.

11. With the aforesaid, this Court does not find that there is any merit in the petition. It is accordingly dismissed. Costs are made easy. Order Date :- 14.5.2025 Arvind