SBCMA No.365/2008 Ravi Setiya Vs. Naresh Kumar & Ors. -{ 1 }- S.B. Civil Misc. Appeal No.365/2008 Ravi Setiya Vs. Naresh Kumar & Ors DATE OF ORDER : - 8.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.JK Bhaiya for the appellant. Mr.Bhagat Dadhich for Mr. KC Sharma, for the respondents. <><><> Heard learned counsel for the parties. The appellant is aggrieved against the order of the trial court dated 2.2.2008 by which the trial court refused the injunction sought by the plaintiff-appellant. Learned counsel for the appellant has shown the copies of the relevant documents including plaint and injunction application and according to learned counsel for the appellant, the property in question was in fact joint Hindu Family property and it was given in the share of the appellant-plaintiff in an oral family settlement dated 7.1.2004. For this, plaintiff's father wrote a Taharir on 29th Nov., 2004. The plaintiff's-appellant's father died in the month of March, 2005. The defendant no.1 is the real SBCMA No.365/2008 Ravi Setiya Vs. Naresh Kumar & Ors. -{ 2 }- brother of the plaintiff took the benefit of his position as he is income tax advocate and obtained the sale deed in his name, which in fact, is a Benami sale deed in the name of the defendants nos. 1,2 and 3. Defendants nos. 2 and 3 are son and wife of the defendant no.1. It is submitted that the defendants surrendered the agricultural land and obtained the Patta from the UIT, Sri Ganganagar for the land in question and they are intending to sell the property in question. It is also submitted that the trial court committed serious error of law and ignored the principles of lis-pendence. It is also submitted that during the pendency of the lis, no third party right could have been created nor can be created by the defendants. Learned counsel for the respondents vehemently submitted that the land in question, which was agricultural land was and is in the name of defendant no.1 since beginning. The plaintiff and defendant no.1's father even had issued a public notice stating that the family properties have already been partitioned and his sons Ramesh Kumar, Mahesh Kumar, Ravi Kumar and Dhiraj have been separated in the year 1981 and since then all the sons are in possession of their own properties and they have no share SBCMA No.365/2008 Ravi Setiya Vs. Naresh Kumar & Ors. -{ 3 }- in the others property. By this public notice, which was published in Pratap Kesri in its edition dated 18th Nov., 1995, the appellant and defendant no.1's father clearly stated that his son Ravi Setiya – the plaintiff obtained certain blank papers signed from Parmanand – the father of the plaintiff and defendant no.1. The trial court considered all the facts and, thereafter, found that no prima facie case is in favour of the plaintiff and the trial court has not committed any error of law or fact. It is also submitted that the plea of restriction by the defendants even for sale of the property in the present case will give undue advantage to the plaintiff and he will succeed in his aim and object. I considered the submissions of learned counsel for the parties and perused the plaint. It appears from the facts mentioned in the plaint itself that according to the plaintiff himself the land in question stands in the name of defendants-respondents and his plea is that the property was purchased as Benami, but he did not disclose when the property in question was purchased and how was Benami. Be it as it may be, the property in question has already been surrendered to the UIT, who in turn issued Pattas in the name of the persons, who sought SBCMA No.365/2008 Ravi Setiya Vs. Naresh Kumar & Ors. -{ 4 }- conversion of the land. The trial court observed that the plaintiff's father gave a public notice as back as on 18th Nov., 1995, but the plaintiff did not take any action thereafter. Not only this, the said Taharir executed by plaintiff's father dated 29th Nov., 2004 was considered by the trial court in detail. In the said Taharir dated 29th Nov., 2004 itself it is mentioned that the property in question is in possession of the defendants. In the said deed, it is mentioned that the possession of the property will be taken latter on from the defendants but material particulars are vague in the said deed, which have been noticed by the trial court in detail. The injunction is equitable relief. Merely because there is principle of lis-pendence, the plaintiff cannot get relief of injunction from the court against the defendants when from his conduct and from his pleading he failed to make out prima facie case. If the plea of the plaintiff is accepted then in all cases where the immovable properties are involved, the court is bound to issue injunction order even when there is no prima facie case in favour of applicant, which would be contrary to the settled principles of law that for grant of injunction, the court is required to be satisfied for prima facie case, balance of SBCMA No.365/2008 Ravi Setiya Vs. Naresh Kumar & Ors. -{ 5 }- convenience and irreparable loss and in case any of the issue is not proved in favour of the plaintiff, no injunction can be granted. In view of the totality of the facts of the case, I do not find that the trial court has committed any error of law or fact in dismissing the injunction applicable. The appeal of the appellant is hereby dismissed having no merit. (PRAKASH TATIA), J. c.p.goyal/-