BEFORE HON'BLE HIGH a8oalB®eac& COURT OF CHHATTISGARH AT BILASPUR fCHHATTISGARH} Misscellaneous Appeal No. ^.zr. /2011. Appellant /plaintiff:- i-Pradesh Jesuits Loyela Niketan Lmgiyadeeh Bilaspur,Through its treasurer, Father Shri Fabuanis Minj S/o late Shri Stanislas Minj, aged about 54 years ,R/o Loyala Niketan Lingiyadeeh Bilaspur, P.S.Sarkanda Tahsil & District Bilaspur (C.G.). ^ -^" VERSUS Respondents/Defendants:- \y^ Shri Ravatpura Sarkar Ashram, Gram PanchayatDhaneli Raipur, Tahsil & District Raipur(C.G.) . Ravatpura Sarkar Lok Kalyan Tnist Bilaspur , Through its Member Ajay Singti S/o Dr. B.S.Singh aged about 41 years R/o Rajkishor Nagar Lingiyadeeh Bilaspur Tahsil & District Bilaspur (C.G.). Ravatpura Sarkar Lok Kalyan Trust Bilaspur , Through its Member Praveen Shukla S/o Chandrika Prasad Shukla aged about 42 years R/o Archana -Vihar House No.D-13, Gandhinagar Bilaspur Tahsil & District Bilaspur (C.G.). State ofChhattisgarh , Throughits Collector Bilaspur, Tahsil & District Bilaspur (C.G.). .4. Misccelaneous Appeal UnderX)rder'43 rule 1( r) read with section 104 of the Code of Civil Prpcedure ^A. -"'%>.. S.B: Hon'ble Shri Prashant Kumar Mishra Misc. Appeal No. 62/2011 APPELLANT RESPONDENTS : Shri Ravatpura Sarkar Ashram, Gr Panchayat Dhaneli Raipur, Tahsil < Dtstrict Raipur (C.G.) and others Ap^earance: Shri Suresh Pandey, counsel for the appellant. Shri Sanjeev Agrawal, Panel Lawyer for the State. MISC. APPEAL UNDER ORDER 43 RULE l(r) READ WlfH SECTION 104 OF THE CODE OF CIV^L PROCEDURE ORAL ORDER (7.07.2011) Heard. (2) The trial court has dismissed plaintiffs application under Order 39 Rule 1 and 2 of CPC and has refased to issue temporary - injunction in its favour. (3) Case of the plaintifF, in shoit is that the plaintiff is ovvner in ». possession of an area admeasumig 0.45 acre bearing khaa-a No. 15/63 at Mouja Lingiadih, Bilaspur. According to him the defendant .is illegally tr\'ing to encroach over his part ofthe land and has started digging fhe land to raise constmction. It was stated in the plaint as weil as in the application for grant oftemporaty injunction that ifthe defendants are not restrained the plaintiff shall suffer irreparable loss. (4) Leamed counsel for the appellant would submit tliat tlie trial 'court has committed an en-or bf observina that the sale-deed in favour ofplaintiffis later in point oftime, than tlie lease deed granted to the defendant and since this is the basis for rejection of the application, the impugned order is vitiated. (5) This court has gone through the plaint, the subject application and its reply as also the demarcation report submitted by the concerned Tahsildar and has heard leamed counsel for the appellaiit at length. (6) Aiinexure P-11 is the report submitted by the Talisildar to the District Judge. In the said report it has been mentioned that the area which is said to be purchased by the plaintiff is in fact part of kfaasra No. 15/45 area 1.50 acre and is recorded as govemment land in the revenue record. (7) Admittedly, the defendant has been granted lease for an area 1.50 acre Irom khasraNo. 15/45. Lease is effective for a period of30 vears w.e.f. 26/02/2009 and registered on 7 Mav, 2009. (8) The question as to whether the subject land is a govemment lah8 will be considered by the trial court in course of recording evidence and deciding the suit. However, prima facie it appears that the resppndent has been granted lease ofthe land which has also been registered. It is also to be seen that the defendant is a lessee from the govemment aad tlie title remains with the govemment, however the plaintiffhas notjoiaed the State Govemnient as a party. It is for the plaintiffto decide whether he is willing to join the State Govemment /as a defendant or not..However. the fa.Ct remains that it is the case of 3- \- the defendant that the land belongs to the state which has been validly ;ranted to it by an instmment which has been registered. (9) Though the finding recorded by the trial court that the sale-deed is later in point oftime is not correct. Yet after examinin^ entire facts and on pemsal ofthe documents, this court is otherwise satisfied that the trial court hasiiot committed any error in refasing to grant temporar>' injunction. The trial court has also observed that in the event the plaintiff succeeds, he shall be entitled to recover vacaiit possession ofthe suit laiid and the deYendant shall be liable to remove any construction made on the suit land meaning tliereby that if the defendant raises any constmction, it shall be at its risk. (10) In the matter ofWander Ltd. and Another vs. Antox Lidia P. Ltd. reported in 1990 (Suppl.) SCC 727 the Hon'ble Supreme Court has held thus in paragraph 14 ofthe report. "14. The appeals before the Division Beach vvere against the exercise ofdiscretion by the Single Judge. In such appeals, the appellate court will not interfere vvith the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been . exercised arbitrarily, or capriciously or perversely or where the court had ignored the^settled principles oflaw regulating grant or refusal of interlocutoty injunctions. Ati appeal against exercise of discretion is said to be an appeal on principle. Appellate court vvill not reassess the material and seek to reach a con&lusion different from the one reached by the court below — ifthe one redched by that court was reasonably possible on the -I material. The appellate court w6uld normally not be justified in it- fb interfering with the exercise of discretioii under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contran' conclusion. If the discretion has been exercised bv the trial court reasonablv and in a judicial manner the fact that the appellate court would have taken a diflerent view may not justify interference with the trial court's exercise..of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Josephl (1960) 3 SCR 713: (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton 1942 AC 130 '...tfae law as to the reversal bv a court ofappeal ofan order inade by ajudge below iii the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case." (11) In view ofthe above lavv laid down by the Hon'ble Supreme Court this Court has limited jurisdictioa to examine the impugiied order which has been passed by the trial court in exercise of its ,4iscretionaryjurisdiction, however, in view oftlie nature ofdispute, it is directed that the trial court shall do well to dispose of the suit as earty .as possible and preferably within a period of six months from the date oireceipt ofcopy ofthis order. (12) With the above direction, the appeal is disposed of. Sd/- Prashant Kumar Mishra Judge v^