IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 509/2009 Reserved on: 29.10.2009 Decided on:29.12.2009 _____________________________________________ Pritpal Singh. …Petitioner. Versus Ishwar Singh. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the petitioner : Mr. Ajay Kumar Sood, Advocate. For the Respondent: Mr. Narinder Chauhan, Advocate. _____________________________________________________ Rajiv Sharma, J. This petition has been directed against the order passed by the learned District Judge in Civil Miscellaneous Appeal No. 37- S/14 of 2009 dated 7.8.2009 and also for quashing and setting aside the order dated 20.6.2009 passed by the Civil Judge (Senior Division), Theog in CMA No. 17/6 of 2009. Material facts necessary for the adjudication of this petition are that the petitioner-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) has filed a civil suit in the Court of learned Civil Judge (Senior Division), Theog, District Shimla seeking relief of permanent prohibitory injunction restraining the 1 Whether reporters of the local papers may be allowed to see the judgment? 2 defendant (hereinafter referred to as ‘the defendant’ for convenience sake) or his family members, servants or agents from interfering in any manner with the possession of the plaintiff with regard to the property denoted in Khasra Nos. 839 and 840 measuring 00-55-95 hectares situated in Chak Annu, Pargana Dharti, Tehsil Theog, District Shimla or dispossessing the plaintiff from the same except in due course of law. The plaintiff along with the suit has filed an application under order 39 rules 1 and 2 of the Code of Civil Procedure, 1908 seeking injunction against the defendant. The learned Civil Judge (Senior Division) granted ex parte injunction order in favour of the plaintiff on 18.3.2009. The learned Civil Judge (Senior Division) dismissed the application on 20.6.2009. Plaintiff feeling aggrieved by the order dated 20.6.2009 preferred an appeal under order 43 rule 1 of the Code of Civil Procedure, 1908 before the learned District Judge, Shimla. The learned District Judge vide order dated 7.8.2009 dismissed the appeal of the plaintiff. This petition has been preferred against the order passed by the learned District Judge on 7.8.2009. Mr. Ajay Kumar Sood has vehemently argued that the orders passed by the learned Civil Judge (Sr. Division), Theog dated 20.6.2009 and District Judge dated 7.8.2009 are not sustainable. He then argued that both the courts below have misread the documentary evidence while passing the impugned orders. He has further contended that the plaintiff has placed tangible material on record to establish his possession on the suit land. 3 Mr. Narinder Chauhan has supported the orders passed by the learned Civil Judge (Sr. Division) and learned District Judge. He has also strenuously argued that the plaintiff has miserably failed to establish his possession over the suit land. I have heard the learned counsel for the parties and have perused the pleadings carefully. As per the pleadings, the plaintiff has purchased land measuring 13 bighas and 18 biswas denoted by khasra No.2,3,4 and from one Shri Surat Ram, Kanshi Ram, Het Ram and Sh. Hari Dutt vide registered sale deed No.40 dated 12.7.1962. The land denoted by Khasra Nos. 277/7/1 measuring 8 bighas was granted to the plaintiff by way of Nautor in the year 1966 and the mutation to this effect was attested on 6.4.1967 vide mutation No. 1124. The Patta was granted in favour of the plaintiff. He planted apple plants in the whole of the land and the apple orchard is fruit bearing. The land comprised in Khasra No. 2,3,4,5 and 277/7/1 were given new Khasra Nos. 830, 831, 832, 833, 836 and 841 kitas 6 measuring 01-64-56 hectares during the settlement. The stand of the defendant in the written statement is that there is a Kucha Dhara in Khasra No. 839. He is also constructing a house in Khasra No. 839. According to him, the plaintiff has obtained Nautor land illegally. He has raised loan amounting to Rs. 2,50,000/- from the Himachal Pradesh Cooperative Bank Branch Theog. He has purchased the land from Mahant Chander, Bhan Giri vide sale deed No. 18 dated 20.1.2009. The plaintiff has placed on record copy of jamabandi for the year 1959-60, copy of jamabandi for the year 4 1967-68, copy of mutation No. 1124 dated 6.4.1967, copy of Missal Haquiat for the year 1999-2000, copy of jamabandi for the year 2001-2002, copy of jamabandi for the year 2006-2007, copy of Patta issued in his favour, copy of Aks Shajara Kistwar. The defendant has placed on record copy of jamabandi for the year 1951-52, copy of jamabandi for the year 1963-64, copy of jamabandi for the year 1972-73, copy of jamabandi for the year 1987-88, copy of jamabandi for the year 1991-92, copy of missal haquiat for the year 1999-2000, copy of jamabandi for the year 2006-2007, copy of Aks Tatima Shajara Kistwar and sale deed dated 20.1.2009. Jamabandi for the year 1951-52 reflects Khewat/khatauni No.5/6 Khasra No. 7/3 in the ownership of Kishan Chand Gir, Amba Dutt Gir and others. In jamabandi for the year 1963-64, Khewat/Khatauni No. 6/34, Khasra No. 7/3 is recorded in the ownership of Kishan Chand Gir, Mahant Amba Dutt Gir and others. In the jamabandi for the year 1991-92 Khewat/Khatauni No. 8/17 Khasra No. 7/3 has again been shown in the ownership of Kishan Chand Giri, Puran Chand Giri, Chelaman Mahant, Amba Dutt Giri and others. In jamabandi for the year 1987-88, Khewat/khatauni No. 8/17, khasra No. 7/3 has been shown in the ownership of Kishan Chand Giri, Puran Chand Gir, Chelaman Amba Dutt Giri and others. In the Jamabandi for the year 1972-73, khewat/khatauni No. 7/15, khasra No. 7/3 reflects the ownership of Kishan Chand Gir, Puran Chand Gir, Chelaman Mahant Amba Dutt Gir and others. Similarly, jamabandi for the year 1999-2000, khewat/khatauni No. 23/49, khasra No. 7/3 shows the ownership of 5 Mahant Chander Bhan Giri, Ravi Giri son and Smt. Sangita Giri daughter of Smt. Chander Kala Giri widow of Krishan Chand son of Amba Dutt, Puran Chand son of Amba Dutt. Sh. Mahant Chanderbhan Giri, Ravi Giri sold khasra Nos. 839 and 840 vide mutation No.44 to defendant Ishwar Singh. The same was sold for a consideration for Rs. 4,70,000/- and the possession was delivered on the spot. The possession of the plaintiff has not been recorded qua the suit land and in any of the jamabandis since 1962 till date. The Field Kanungo has conducted the demarcation on 5.3.2009. Assistant Collector 1st Grade on 8.4.2009 has approved the demarcation report. He has declined to ascertain the factum of possession over the suit land. The plaintiff has not preferred any appeal under section 14 of the Himachal Pradesh Land Revenue Act against order 8.4.2009. What emerges from the material placed on record is that the land bearing Khasra No. 7/3 measuring 36-13 was owned by Mahant Amba Dutt Giri ,Chella Ganesh Giri and thereafter by his successor Sh. Krishan Chander Giri and Amba Dutt Giri. New Khasra Nos. 839 and 840 kitas 2 measuring 0-55-94 hectares were carved out of the portions of old Khasra No. 7/3 i.e. 7/3 min during the settlement operation. Sh. Mahant Chander Bhan Giri son of Krishan Chander and Ravi Giri son of Krishan Chander have sold the suit land comprised in Khasra No. 839 and 840 kitas 2 measuring 0-55-94 hectares in favour of the defendant. 6 Mr. Ajay Kumar has also placed reliance upon the initiation of proceedings under the Code of Criminal Procedure. The possession cannot be determined on the basis of initiation of criminal proceedings. It was necessary for the plaintiff to place on record tangible evidence to prima facie establish his possession over the suit land. The plaintiff has failed to prove prima facie case and balance of convenience in his favour, rather, the balance of convenience is in favour of defendant, who will suffer irreparable loss and injury in case the present petition is allowed. It is cardinal principle of law that a party seeking injunction has to establish that he has made out a prima facie case going for trial. In case party fails to establish prima facie case in that event it is not open to the courts of law to grant injunction in his favour even if he has made out a case for balance of convenience in his favour and would suffer irreparable loss and injury if no injunction is made in his favour. Accordingly, in view of the observations made hereinabove, there is no merit in the petition and the same is dismissed. No costs. (Rajiv Sharma), Judge 29.12. 2009. *awasthi*