..... Misc. App eal No. 0 200 .3 . a- B.S.P. Emlbyegs Co-opgrgiVe ‘~ Society Limited (Regd.No. 139 2). Head 0f£ice Sewer-l (East) Through s- President Yershs» x Nagar Palika Nigam Bhilai Thwagh- Commisaaner . Nagar Palika Nigam,Bhilai. Tah.& DistinDURG (CG). > ‘(iiin’dergar er‘:45:‘~:::R‘ule:»1.§9r)i :‘CEC, 3' , ‘ ' } ‘ é M.A. N0. 90 of 2003 APPELLANT] Plaintiff B.S.P. Employees Society Limited VERSUS ‘* RESPONDENT] Defendaht y- Nagar Palika Nigam Bhilai a Co-operative Post for pronouncement on lg/12/201 1 Sd/-’ N.K. Agrawal Judge L i/1’2/2’01i e HIGH COURT OF CHHATTISGARH AT BILASPUR R HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. No. 90 of 2003 APPELLANTI Plaintiff B.S.P. Employees Co-operative Society Limited VERSUS Nagar Palika Nigam Bhilai RESPONDENT] Defendant (MEMO OF APPEAL UNDER ORDER 43 RULE1 (R) OF CPC) SB: Hon’ble Shri N.K. Aqarwal, J. Present : Shri VG Tamaskar, Advocate for the appellant. Shri Satyawan Agrawal, Advocate for the respondent. JUDGMENT ‘ (Delivered on lg 112/2011) 1. instant Miscellaneous Appeal filed under Order 43 Rule 1(r) of CPC is directed against the order dated 30.012003, passed by IVth Additional District Judge, Durg, in Civil Suit No. 4-A/02, whereby and whereunder the a'ppeilant's application filed under order 39 Rule 1 & 2 of CPC for grant of temporary injunction has been rejected. 2. Brief facts of the case are : plaintiff/appellant instituted a suit 'claiming relief of declaration to th‘e effect that respondent/defendant is in adverse possession of the suit land, and for mandatory injunction to restrain the defendant from interfering in plaintiff's possession inter alia on the ground : plaintiff is in adverse possession of the suit land since 42 years. . \ Along with plaint, plaintiff also moved an application under Order 39 Rule 1 & 2‘of CPC for grant of temporary injunction. Defendant, by filing reply to plaintiff‘s application for grant of temporary injunction, denied the piaint averment, aiso denied plaintiff's possession over the suit Iand. The trial court, vide order impugned, having prima-facie found, plaintiff is not in possession of the suit Iand, dismissed the application fiied under Order 39 Rule 1 & 2 of CPC. Hence this appeal. Shri V.G. Tamaskar, Iearned counsei appearing for the appellant would submit petitioner society was allotted two separate plots for Petrol Pumps. These two Petrol Pumps were ~ separated by a canal running between them. However, for the purpose of connecting both the Petrol Pumps, the petitioner society took adverse possession by filling up to the canal bringing it up to the level of Petrol Pumps and since then the petitioner society is in adverse possession of the suit land (i.e. canal) and the trial court ignoring the documents (Annexure P/1 & P/2) i.e. letter dated 15.11.2002 written by the plaintiffto the Commissioner, Municipal Corporation, Bhilai (for short 'the Corporation') and letter dated 22.11.2002 written by the Corporation to the President of the petitioner society, and has erroneously held, plaintiff is not in possession of the suit property while dismissing the plaintiff's application. On the other hand, Shri Satyawan Agrawal, learned counsel appearing for the respondent contended vide letter dated 15.11.2002 (Annexure P/1), a prayer of allotment of land was made by the plaintiff, whereas, vide letter dated 22.11.2002, respondent directed plaintiff to remove barbed wire fencing from the suit Iand. Letter dated 15.11.2002 written by the plaintiff to the Corporation itself shows earlier the suit land was being used by Matador u‘nion as a Car stand. The same was got vacated with the help of the then Chief Minister Shri Motiial Vora, and therefore, on the face, the plea of adverse possession taken by the appellant is devoid of merit. It was further urged, by dividing into several plots, the suit land has I been allotted to 53 persons by the respondent, and therefore, the trial court has not committed any error in dismissing the plaintiff's brayer for grant of temporary injunction. i have heard the counsel appearing for the parties and perused the order impugned including records of the court below. A bare perusal of plaint averment and the documents i.e.. Annexure P/1 & P/2 filed along with the appeal would reveal there is no specific averment as to how and imwhat manner the plaintiff came into possession of the suit land and when the alleged possession became adverse to the interest of , respondent. Letter dated 15.11.2002 (Annexure P/1) shows, plaintiff himself praying for allotment of suit land. Undisputedly, the respondent is the owner of land. Merely by putting barbed wire fencing over the suit land would not mean plaintiff is in lawful and/or in long/settled possession of the property. The Supreme Court in case of Gangubai Bablya Chaudhary & others v. Sitaram Bhalchandra Sukhtankar & others, reported in 1983 (4) SCC-31, has laid down the law : when an interim injunction is sought, the court may have to examine whether the party seeking the assistance of the court was at any time in Iawfui possession of the property. 10. In the instant case, the fact that plaintiff at any point of time was in Iawfui possession of the suit property, has neither been pieaded nor supported by any documentary evidence. Further, the fact that barbed wire fencing has already been removed from the suit property as pleaded by the respondent remains "‘ ‘un-rebutted. 11. It is settied Iaw, in order to claim interim injunction, the plaintiff has to establish prima-facie case, balance of convenience and irreparable injury, in absence whereof, the temporary injunction should not be granted. Moreover, equities are also not in favour of appellant/plaintiff. For the reasons mentioned h'ereinabove, in the considered opinion of this court, the trial court has not‘committed any illegality in dismissing the plaintiff's application for grant of temporary injunction, warranting interference of this court. 13. Therefore, the appeal fails and is accordingly dismissed. . Application med by the appellant for taking documents on record, is also dismissed, as the documents sought to be admitted in evidence in this appeal are not at all relevant for the controversy involved in this appeal. 15. However, in the interest of justice, it is directed that trial court shall decide the suit as early as possible preferably within a \ period of one year from the date of receipt of a copy of this order without being influenced by any of the observations made hereinabove. 16. No order as to costs. if: Sdl- N.K. Agrawal Judge Sahu ”‘i r \\'