S.B.Civil Misc. Appeal No.2353/07 Narayan Lal & ors. v. Varda Ram 1 S.B.Civil Misc. Appeal No.2353/2007 Narayan Lal & ors. vs. Varda Ram Date of Order: 12.9.2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. Sandeep Shan or the appellants. Mr. Rakesh Arora for the respondent. Heard learned counsel for the parties. The appellants are aggrieved against the order dated 13.9.2007 by which the trial court, Addl. District Judge, Abu Road, District Sirohi in Civil Misc. Case No.49/2007 granted interim injunction order restraining the defendant-appellants from dispossessing the plaintiff from the land measuring 25 ft. x 30 ft. shown by the Commissioner in the map and directed to maintain the status quo. The trial court allowed the defendants- appellants from raising the construction over the property which is of their ownership and for which they already obtained permission to raise construction. The learned counsel for the appellants submitted that the trial court held that the plaintiff failed to prove the ownership for any of the land even adjoining to the appellants' land. The S.B.Civil Misc. Appeal No.2353/07 Narayan Lal & ors. v. Varda Ram 2 trial court also held that the plaintiff is not in possession of the property. The trial court also held that the defendants are raising construction after obtaining the permission to raise construction. The trial court also held that there is no construction of the plaintiff on the site. Even after holding so, the trial court granted injunction in favour of the plaintiff- respondent. The learned counsel for the plaintiff-respondent vehemently submitted that the property was belonging to the plaintiff-respondent since the time of his father and from the year 1975. This property was sold to one Subhash by agreement dated 14.9.2005 but the same was re-purchased by the plaintiff for which endorsement was made on the agreement dated 14.9.2005. According to the learned counsel for the plaintiff- respondent, the defendants have been granted permission to raise construction over the property for which they sought permission to raise construction and there is no construction permission granted by the local body Gram Panchayat for the land over which the injunction has been granted. It is also submitted that the property for which the injunction was S.B.Civil Misc. Appeal No.2353/07 Narayan Lal & ors. v. Varda Ram 3 granted by the trial court, is not the property of the defendants. In view of the above reasons, the trial court rightly granted injunction and that may not be vacated. According to the learned counsel for the respondent-plaintiff, in case during pendency of the suit, the defendant-appellants will raise constructions, then the plaintiff will suffer irreparable injury. It is also submitted that the Commissioner was appointed and the site was inspected by the Commissioner, whose report was duly considered by the trial court and, thereafter, the injunction was granted. I considered the submissions of the learned counsel for the parties and perused the record also. It is not in dispute that the plaintiff's entire case is that he was in possession of the suit property since 1975. His contention is that his possession is without any obstruction from any body. The Panchayat granted a certificate on 14.4.1983 in favour of the plaintiff. The property was sold by the plaintiff to one Subhash and it was again purchased by the plaintiff from Subhash. Except the alleged certificate issued by the Gram Panchayat dated 14.4.1983, there is agreement to sell executed by the plaintiff- S.B.Civil Misc. Appeal No.2353/07 Narayan Lal & ors. v. Varda Ram 4 respondent on 14.9.2005 in favour of Subhash. This is agreement only and not a sale-deed. On this document itself, there is endorsement that the property has been re-purchased by the plaintiff from Subhash in the month of December, 2006 itself. These are the documents to prove the possession of the plaintiff. The Commissioner submitted report which is not in dispute and it appears from the Commissioner's report that in one side in the western side, there is a road and then the property in dispute and thereafter in the southern side, there are houses of defendants. In the southern side, there is hand- pump and other stones lying there. In the north side, there are some stones etc. The Commissioner also took photographs and produced before the court. From the photographs, it appears that the land in question near the construction is only debari and nothing more. There is no sign of possession of any body over the property in dispute for which the injunction was granted by the trial court. At this juncture, it will be relevant to mention that the trial court has not granted injunction over the property for which the defendants obtained the construction permission and the defendants have raised substantial S.B.Civil Misc. Appeal No.2353/07 Narayan Lal & ors. v. Varda Ram 5 construction over it. According to the learned counsel for the appellants because of injunction order, the appellants' property cannot be used and that too when the trial court itself was of the view that neither the plaintiff had possession over the property for which the injunction was granted nor has title. The documents placed on record by the respondent i.e. agreement dated 14.9.2005 is a document between the respondent-plaintiff and one Subhash and it is of no consequence. Looking to the finding recorded by the trial court, it appears that the plaintiff has not come in court with clean hands and has not disclosed the complete facts. Not only this but from the facts disclosed by the plaintiff, no prima facie is made out by the plaintiff for grant of injunction. The injunction cannot be granted merely on the basis of the fact that one has filed the suit. In this case also, after going through the Commissioner's report, the photographs placed on record and the documents produced by the plaintiff, I am also of the view that there is no prima facie case made out by the plaintiff. In view of the above reasons, this is very strange that for open piece of land, as alleged by the plaintiff himself, the trial S.B.Civil Misc. Appeal No.2353/07 Narayan Lal & ors. v. Varda Ram 6 court observed that in case the doors and windows will be opened by the defendants then the privacy of the plaintiff will be disturbed. The finding of the trial court is absolutely capricious and perverse. In view of the above reason, the trial court committed serious error of law by granting injunction. It is normally argued that in case the defendant will raise construction during pendency of the suit then the plaintiff will suffer irreparable injury and the property is required to be protected during pendency of the suit. That plea is not available to a person who failed to prove his prima facie case. In view of the above, the appeal of the appellants is allowed and the order dated 13.9.2007 passed by the trial court is set aside. The injunction application is dismissed. (PRAKASH TATIA),J. mlt