MISC. APPEAL No. 690 OF 2008 Against the judgment, dated 27.09.2008 passed by the Civil Judge (Senior Division), Buxar in T.S. No. 108/2007 KAPIL RAM SON OF LATE KASHI RAM, RESIDENT OF VILLAGE- KARUAZ, P.S.-DUMRAON (KORAN SARAI), DISTRICT-BUXAR, -------------(Appellant) Versus 1. DULHIN URMILA DEVI WIFE OF YOGENDRA NATH TIWARY, RESIDENT OF VILLAGE-RAJDIHA, P.S.-DUMRAON, DISTRICT- BUXAR, 2. MOST. SHAVITRI DEVI WIDOW OF LATE GANESH TIWARY 3. DEEPAK TIWARY 4. VIKAS KUMAR @ SANJAY TIWARY BOTH SONS OF LATE GANESH TIWARY, 5. MOST. KAUSHLAYA DEVI WIDOW OF LATE SINGHASAN TIWARY, 6. GOPALJEE TIWARY SON OF LATE SINGHASAN TIWAY, ALL RESIDENTS OF VILLAGE-RAJDIHA, P.S.- DUMRAON, DISTRICT-BUXAR, ----------------(Respondents) FOR APPELLANT M/S Kunwar Oukar Nath Adv. FOR RESPONDENTS 5& 6 M/S A. B. Ojha Adv. Mr. Avanish Kr. Pandey Adv. P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the parties. 1. This Miscellaneous Appeal is directed against the order dated 27.09.2008, passed by the Civil Judge (Senior Division), Buxar, by which he has rejected the petition for grant of injunction. 2. The case of Dulhin Urmila Devi plaintiff- respondent is that the plaintiff filed a suit for declaration of title and confirmation of possession over suit land on the basis of sale deed dated 25.10.2001 and 27.01.2001 and declared that sale deed executed in favour of defendant no. 1 by defendant no. 3 further sale deed executed by defendant nos. 1 and 4 in favour of defendant no. 2 are forged and fabricated. 3. The case of plaintiff-respondent is that the land belongs to one Singhasan Tiwary. Defendant no. 3 Kausalya Devi was the second wife of Singhasan Tiwary during the life time of first wife, the son of Singhasan Tiwary from his second wife. Plaintiff claimed his right title over suit land by virtue of sale deed purported to have been executed by defendant no. 4 and assert that defendant no. 3 the second wife of Singhasan Tiwary during life time of first wife had no right to execute sale deed. 4. The case of defendant no. 2 appellant is that they have purchased the land from their vendor defendant no. 1 by sale deed dated 26.02.2003. The defendant no. 1 had purchased the land by the sale dated 15.01.2010 from Kaushalya Devi defendant no. 3. Defendant no. 2 purchased 23 dismal land from defendant no. 4 on 26.03.2003. The further case that Kaushalya Devi married with defendant no. 1953 she had right over the property got mutated and paying rent. 5. However, during the pendency of the suit an injunction petition under Order 39 Rules 1 and 2 of the Civil Procedure Code filed on 22.09.2008 by defendant alleging that he had grown paddy crop and plaintiff themselves to harvest, plaintiff be restrained from going over the land. 6. Hence, the parties, Gopal Jee Tiwary executed sale deed in favour of plaintiff on 21.01.2001 and again executed sale deed on 27.02.2003 in favour of defendant no. 2 cannot be said that there is no prima facie case, balance of convenience is also not in favour of plaintiff and hence rejected the petition of ad-interim injunction. 7. The case of the defendant-appellant is that he purchased the land from defendant no. 1 who had purchased 81 decimal of land from Kaushlya Devi on 15.01.2001 and asserted that Kaushlya Devi was married with Singhasan Tiwary in the year 1953. The plaintiff filed a suit for declaration and thereafter he has also got executed one sale deed with regard to 23 decimal of the land in favour of the appellant. However the plaintiff filed the suit for declaration of title and recovery of possession from the date of the sale deeds dated 25.10.2000 and 27.02.2001 and the three sale deeds executed by Kaushlya Devi is forged and fabricate. However, in application for injunction filed by defendant for an ad- interim injunction on the ground that suit land in their possession from the date of the purchase and has got rent receipt and has grown paddy crops. However, the said petition was rejected by the impugned order dated 17.09.2008. 8. The learned counsel for the appellant has challenged the said order dated 17.09.2008. It has been contended that the land was purchased by the defendant no. 1 the vendor of the appellant on 15.01.2001 from Kaushlya Devi and defendant no. 4 is the second wife of Singhasan Tiwary, defendant no. 1 was in possession and thereafter defendant no. 2 appellant purchased the land from Ganesh defendant no. 1 in 2003. However, the plaintiff has purchased the land from Gopal on 27.01.2001 and hence contended that since the purchase of land by his vendor (defendant no. 1) is prior to the purchase of the land by the plaintiff-respondent and hence has got a prima facie case. Hence has also got balance of convenience and further contended that since, he was coming in possession. 9. The learned counsel for the respondents, however, contended that plaintiff-respondents have purchased the land from Gopal, defendant no. 4, the son of Singhasan Tiwary, whereas the defendant no. 2 has purchased the land from one Ganesh in 2003, whereas the said Ganesh had purchased the land in 2001 from Kaushlya Devi the second wife of Singhasan Tiwary during the life time of the first wife of Singhasan and hence Kaushlya Devi has no right and this defendant no. 2 even knowing by defendant no. 4 has purchased a litigation and asserted that the case of the plaintiff itself is that he has been dispossessed and is not in possession. 10. However, the learned counsel for the appellant has contended that the defendant no. 2 appellant has contended that he was dispossessed after the impugned order having been passed and claimed that the Pleader Commissioner report and police report is against the plaintiff-respondent. 11. However the learned counsel for the appellant asserted that these Advocate Commissioner report or police report is not significant at this stage. However, the police report is in regard to the proceeding under Section 107, of the Criminal Procedure in different case having no nexus with this suit and hence no relevant. 12. On respective submissions of the parties, the question for consideration is whether the appellant is entitled for order of injunction as have prima facie case balance of convenience and irreparable loss. 13. From the pleading of the parties it is undisputed that both claimants and the Singhasan Tiwary was the original owner and the plaintiff purchased the land from Gopal Tiwary son of Singhasan Tiwary by sale deed dated 15.10.2000 and 27.10.2001, and the defendant claims to have been purchased from Ganesh in 2003. Though, Ganesh alleged to have purchased from Kaushlya Devi on 15.01.2001 and from Gopal Tiwary in 2003. Hence purchase by Kaushalaya Devi second wife and repurchase of land from Gopal defendant no. 4 when defendant no. 4 had already sold the land to plaintiff prima facie place the case of plaintiff on better footing. However assuming that there is prima facie case the question for consideration is the balance of convenience and irreparable whether in favour of the appellant. The land is agricultural land and the case of the plaintiff is that it is an admitted case of defendant that the defendant has been dispossessed and the plaintiff is in possession however it is alleged that the dispossession is after the impugned order. However, the plaintiff also claims to be in possession since the inception is still in possession. 14. However, the matter of injunction is to be looked into and decided in the principles of prima facie case, balance of convenience and irreparable loss. However, both the parties claimed to have purchased from the heir of Singhasan Tiwary and hence assuming that there is a prima facie case, now the question for consideration is that the balance of convenience and irreparable loss. However, both of the parties are claim to be in possession but the defendant has claimed that he has been dispossessed after the impugned order and claimed to have been in possession though have purchased the land in 2003 from Kaushlya Devi. However, so far the irreparable loss is concerned, the land is agricultural land and there is nothing to suggest that loss if any cannot be compensated in term of money. However if the defendant succeeds in the case he will be compensated in terms of money as mesne profit or loss he has suffered due to the possession of the land by plaintiff in dispute. Hence there is no irreparable loss which can be compensated in terms of money. Hence taking into consideration appellant is not in possession and no irreparable loss and hence defendant is not entitled for an order of injunction. I do not find any merit in this appeal. The Miscellaneous Appeal is dismissed. However, lower Court is directed to proceed with the case on day-to-day basis and decide the appeal at the earliest, preferably within six months and any demonstration to the parties shall be strict compliance to the order under Section 177 of the Civil Procedure Code. This order will not prejudice the merit of the case and I am not expressing any opinion about the merit of the case. (Gopal Prasad, J.) The Patna High Court, The 29th day of October, 2010, N.A.F.R./Cp:3/Safik