BEFORE HON’BLE HIGH COURT OF CHHATTISGARH AT MA. r94 l [2005 §j§wgg ggmm BILASPUR lC.G.[ Single Bench Apgeuants v \5 (1/; JHAGGAR SINGH KATHLE /maintiffs1 k‘ 3/ aged about 56 yea}s',‘s/o. Late Rungu Khattle Scheduled~ Caste—Satnami, R/o. Village— Rahangi, Indrapuri Gram Panchayat, Rahangi, Tahsil— Belha, Distt. Bilaspur (C.G.) 2. SMT. BHOORIBAI aged 65 years, widow of ~ Late Mahadeo Scheduled—Caste— Satnami, r/o. Village— Raharfgi; Gram Panchayat— Rahangi, Tahsil—Belha, Distt. Bilaspur (CG?) VERSUS O OF APPEAL (Under Order 4§Ru1e (r) C.P./c.) I MEM RESPONDENT STATE OF , (”f/Defendant] CHHA’I‘TISGARH f Through ~ Collector, Tah ’vf 8a ‘Q/ HIGH COURT OF CHHATTISGARH-AT NLASPUR' M.A. No. 299‘ M2005 Jhaggar Singh/ Kathie and others. VERSUS ORDER, ( Passed on Q44 1 -2005) Dhirendra Mishra, J The appeuanis have prefetred this appeal under Order 43 « Ruie 1 of'the CPC asithe application for temporary injunction med under Order 39 Rule 1 and 2 of/the CFC has‘ been rejectedby ‘ Additional District Judge Biiaspur vide vorder dated. 16.2.2005 pa‘ssedin’MJc No. 46/2004 ‘ 1 Brief facts of the case are that the appalants filed a civil : suit before the Court below for declaration and perpetual ; injunction averring that father of the plaintiff No.17 obtained ; possession of the suitproperty as encroacher in me year 1960. ~ Plaintiff/appellant No.1 is in possession of a plot admeasuring' V 1824 sq.ft. whereas plaintiff/appellant No.2 is in possession of a plot admeasuring 750 sq.ft. They are in peacefulpossesslon over the said plots for last more than 40 years and as such they-have perfected title and the defendant has no authority to dispossess them. The plaintiffs were in possession ofthe said property Well: u within the knowledge of the» defendant but they have never been a dispossessed by it. Tehsildar, Belha issued a notice on 9.1 1 .2004» for eviction of the plaintiffs from the encroached land and _- therefore the above suit had beentiled. The appellants/plaintiffs i also moved an application for temporary injunction under Order 39: », Rule 1 and 2 of the CFC and in its reply the defendant/state a . l l Stateof Chhattisgarh. Shri V.G. tamaskar learned counsel for the appellants‘.‘ a. Shri J.D. Bajpai learned GA for respondent. * _ disputed the claim of the plaintiffsthat they were in possession of the said property, for iast‘more than 40-years and submitted that 3. the appellants are encroachersr and theyencreach‘ed uponlthe suit at land, in thel‘yweav 2003.2004. Ejaetment preceedings under seetion ~. 248 of thevMP. Land Revenue Code haveaisovbeen initiated by r- Tehsiidar, Belha. In revenue records die property in question has ‘ x been entered into the name of FWD, Governmentof Chhattiegarht in support of the reply to the application for temporary“ injunction ., an affidavit of Tehsildar» hasi‘al’sorabeen filed. '- LearnedAdditional District Judge afterhearing‘the- parties i rejected the application for temporary injunction-by recording a, , finding thatvthe plaintiffshave'not tiled anydocument insupportaof' i their contention that they are in possession of the suit propertyfor a, last more than 40 years except their own affidavit and from the a documents available on record possessionkofathe plaindffs over the suit land is not estabiished. So far as thevother documents filed by the plaintiffs regarding village ‘Kotwar's diary showing entries of the birth of sons and daughters ofthe plaintiffs, voter identity card and school records etc; are concerned, by the said a documents it is oniy established that the plaintiffsare residing at: » villageRehngi butthey may not be taken as evidence toshowthat xi they are in possession of the said plots since. 1960 and u i“ accordingly-no primal facie case isemade out in favour of the ; plaintiffs. The application for temporary injunction has been = rejected. by’the impugned order also on the ground that no s. ,1: temporary injunction under Order 39 Rule1 and 2 of theCPC can i. be granted where no relief can be granted undersections 38 and .=_ 41 ofthe:Specific Relief Act in View of the MP amendments in I Order 39 Rule-1, and 2. a we, Learned codnsel for/the appellants telying on the various,» .. judgments. of the Supreme Court submits that where the. a possession 'of the plaintiffsais established, the status quo should be maintained titi- the disposal of the suit. Hefurther submits that ‘ \ ' ’ the plaintiffs are in possession of the pick: in question smce 1960 and they are resndmg there since then and taking Into consideration the uninterrupted possesslon for last more than 40 years over the land in question it Is pnma facie established that they have perfected their title by way of adverse possession Relying upon the decismn of the Supreme Court in the matter of Rame Gowda ( Dead i by LRs Vs M Varadagga Naidu (Dead) . ’ y gig _y_LRs and another reported in (2004} 1 scc 7&9 learned t 1" counsel for the appellants submits that the plaintiffs are in settled possessmn over the property in question and as such they have perfected their title on the basis of continuous possessmn for last more than 4O years and thus the Court below ought to have protected the possession of the‘plaintiffs by passing the order of temporary injunction. He further relied upon a decision of the Madhya Pradesh High Court in the matter of Waheed Khan Vs. QLani Bat and others reported‘in 2005 (3) Mai-Ff 9,1 and submits that there is prima facie case in favour of the appellants/plaintiffs as they are in possession of-the property mentioned abovesince 1960 and therefore, balanoe of convenience lies in th’eir favour. V He further submits that if the plaintiffs/appellants are m. " dispossessed from the property during the pendency of the suit. irreparabie injury is bound to be caused to them as also to their i family members as the suit pending before the trial Court will become infructuous and meaningless after dispossession. On the other hand leamed counsel for the respondent/state supporting the impugned order submits that 'there is nothing on record-to establish thatthe appellanm were in possession of the property since 1960 and the. hnding in this regard is as per the material available on record and as such the appellants‘have no prima facie case in their favour and the Court below has rightly rejected the application for temporary injunction. 4: l have heard learned counsei for the parties and perused the material available on record 5 343- \ Ros ”MK Case of the plaintiffs is based on the averment that they are residing in the house constructed overthe disputed plots since the time of their ancestors i.e. from the year 1960 without any objection from any quarter within the fuil knowledge of the defendant and no eviction proceedings have ever been initiated against them during all this period. From the documents tiled by ‘ i the plaintiffs it is established that they are residing in village k Rehngi since 1960 and the children of the plaintiffs were born and brought up in that very village. It is not the case of the defendant that the plaintiffs were residing in some other dwelling house in village Rehngi. / Case of the plaintiffs is that they have perfected their title by way of adverse possession. The factum of adverse possession has to be established by oral and documentary evidence during trial which is going on in the trial Court. The possession of the plaintiffs over the land in question is not disputed by the defendant. 1r 7 Thus the findings of the trial Court that there is no w documentarygevidence to the effect that the piaintiffs are in possession of the land in question since the year 1960 is based on improper appreciation of evidence available on record. The material available on record is yet to be established by oral evidence to be led by the parties. in View of the-aforesaid discussion this Court is of the opinion that the learned trial Court ought to have protected the status quo as it existed on the dat‘e of tiling of the suit till the disposal of the same. ‘ Consequently, the impugned order is set aside and parties are directed to maintain status quo till the disposal of the suit. Trial Court is directed to dispose of the suit expeditiously. Appeal thus Sd/— Dhirsndra Mishra Judge stands allowed. \¢N