IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.375 of 2009 KESHAV TIWARI @ KESHAV TIWARY @ KESHO TIWARY S/O LATE AMBIKA TEWARI, RESIDENT OF VILLAGE – AROARA, P.S. – UDVANT NAGAR, DIST. – BHOJPUR. ------- PLAINTIFF/APPELLANT/PETITIONER Versus 1. RAMJEE YADAV, S/O LATE SHIV NANDAN YADAV 2. SURENDRA YADAV S/O RAMJEE YADAV 3. RAM NARESH SINGH 4. RAM ISHWAR SINGH BOTH SONS OF LATE NAND GOPAL SINGH 5. RAM BACHAN SINGH S/O LATE BABAN SINGH ALL ARE RESIDENTS OF VILLAGE – AROARA, P.S. – UDVANT NAGAR, DIST. – BHOJPUR. -------- DEFENDANTS/RESPONDENTS/OPPOSITE PARTIES. ----------- For the petitioner : Mr. Jai Shankar Barnwal, Advocate For the opposite parties : None. --------- 2. 6/3/2009 Heard Mr. Jai Shankar Barnwal, learned counsel for the petitioner. The plaintiff-appellant-petitioner is aggrieved by the order dated 27th of January, 2009 passed by the District Judge, Bhojpur, Ara, in Misc. Appeal No. 16 of 2008 affirming the order dated 3.6.2008 passed by the 3rd Munsif, Ara in Title Suit No. 63 of 2006 dismissing the petition filed by the plaintiff-appellant- petitioner for grant of temporary injunction against the defendants. The lower appellate court on consideration of the rival submissions has come to the following conclusion:- “From perusal of the record it is clear that Kheshra No. 1718, 1719 and 1729 is owned and possessed by the plaintiff. The defendant not claiming an inch of land of the aforesaid kheshra’s, like wise the plaintiff also not claiming an inch of land of kheshra no. 1715 which is owned and possessed by defendant – respondent. The land of the plaintiff is fenced by a boundary wall and just towards the - 2 - boundary wall a lane is existing for which plaintiff claims that 8 links of land has been left by him for the lane and some land also left by the defendants. The drain is running just towards north of boundary wall of the plaintiff. The fall water of the house of the defdt. respondent flowing from that drain. From the situation set forth above it is clear that the plaintiff has no ingress in the lane as he has already fenced his land towards north. The existence of drain is old. It is not constructed after filing of the suit. The house of the plaintiff is south of his boundary wall. Up till now it has not been determined by the court that any inch of land is left by the plaintiff in the lane or not. Therefore presently plaintiff has no primafacie case, nor balance of convenience because the drain and lane was used and being used by the defendant before filing of this suit. By flowing the dirty water of the house of the defendant the plaintiff have no irreparable loss. Therefore, the learned lower court rejected the injunction petition of the plaintiff appellant.” It is well settled that for grant of temporary injunction, three ingredients, viz., prima facie case, balance of convenience and irreparable loss are to be considered by the courts. Both the trial court as well as the lower appellate court, have come to the conclusion that the plaintiff-appellant-petitioner does not have a case for grant of injunction. Learned counsel for the plaintiff-appellant-petitioner submits that the Pleader Commissioner’s report, though objected by the opposite parties, should have been relied by both the courts below as the same indicates that the drain concerned is not an old one. The trial court while referring to the Pleader - 3 - Commissioner’s report has observed that the same has been objected by the defendants. There is concurrent finding of both, the trial court as well as the lower court that the petitioner has not been able either to make out a prima facie case or could show balance of convenience in his favour. No case of any irreparable loss could be also made out. This Court, thus, does not find any jurisdictional error in the impugned order passed by the lower appellate court affirming the trial court’s order. As a result, this Civil Revision is dismissed. S. Ali (Dr. Ravi Ranjan, J.)