mOH COURT OF CHHATTISGARH AT BTLASPUR S.B. HON'BLE SHRI DHIRENDRA MISHRA. J. WRIT PETITION (q N0. 6012/2007 PETmONEatS DEraiNDANTS RESPONDENT pLAnmFF Jai Singh and others Versus Doman Sin^i ORD BR ^•^. POST ON 7' .JULY. 2008 '>»' S~. 7.2008 HIGH COURT OF CHHATTISGARH AT BIIASPUR S.B. HON'BLE SHRI DHIRENDRA MISHRA. J. WRIT PETmON (C) N0. 6012/2007 WRIT PETITION UNDBEl ARTICLB 227 OF THE CONSTITUTION OF INDIA PBTmONEKS 1. DEraiNDANTS 2. 3. 4. 5. RESPONDENT PLAINTIFF Jai Singh S/o Shri Laxman Sin^i, Aged about 45 years, Top Singh, S/o ShriLaxman Siagh, Aged about 42 years Both R/o Village Shardha, TahsU Lormi, District BUaspur (CO) ShivKumar S/o Shri Narmada Prasad Lonia Aged about 39 years RamKumar S/o Shri Narmada Prasad Lonia Aged about 36 years Shyam Kumar S/o Shri Narmada Prasad Lonia Aged about 33 years. AU R./o Village Navrangpur, Tahsil Lormi District BUflspur (CO) Versus Doman Singh, S/o Shri Patu-am Lonia, Aged about 36 years, R/o VUlage Navrangpui', Tahsil Lorml Present: Mr. Sanjay S. Agrawal, counsel for the petitioners. ORDBR (Passcd on y*July, 2008) Dhtrendra Mishira, J The matter is listed for flnal hearmg. However, n6 one appears on behalf of the respondent/plaintiff, fhough served and represented. On 14.12.2007, 17.1.2008 & 4.2.2008 also ^•= '•.- none appeared for fhe respondent/plamtiff. Therefore, the petition is heard in absence ofthe respondent/plaLnllff. 2. The respondent/plaintiff has instituted a suit (Annexure P/1) for declaration of title and permanent injunction in respect of fhe suit land and also ffled application for temporaiy injunction in the above suit. The appllcation for temporaiy injunctton was rejected vide order dated 20.2.2007 (Annexure P/5) passed by fhe Civil Judge, Class-I, Mungeli with fhe findings fhat (he sult land was transferred by fhe plainttff fhroygh his father as natural guardian by registered sate deed in fhe year 1979, the plaintiff attained majority in fhe year 1988, however, he did not uistitute suit withui threc years of attaining majority; the smt was filed in the year 2006 and the sale deed contains recitals that possession of fhe suit land was handed over to the defendants. Demarcation report submitted by the plaintiff does not show tfaat he is in possession over the suit laad whereas the niutation register for the year 1981 flled by the plaintiff shows that names of fhe defendaats are recorded over the suit land. The land in question has been subsequenUy transferred by the defendants No. 1 & 2 in favour of the defendants No. 3 to 5 and fhus, fhe plaintiflT has falled to establish prim.a facie case in his favour. 3. The respondent/plaintlff preferred miscellaneous appeal against the order dated 20.2.2007 passed by Civil Judge, Class- I, MungeU. The leamed Additional District Judge, Mungeli, vide order dated 30U1 August, 2007 (Annexure P/7) allowed the appeeil and passed the order of temporaiy injunction to fhe effect fhat the defendants shall not interfere in fhe possession of the plainttff over his svat land till fmal disposal of the suit. 4. Leamed counsel for the petitioners/defendants argued that scope of interference by the appellate Court against the grant or refusal of temporaiy injunction, has been elaborately dealt with in fhe judgment in (he matters of Sree Jaln ^^^^^^^SS^%%^^^^^^'<^^S'SS£^^^^^i^^%f^^^^^^^§^f^}?iE^^^?^ Sufetam&ar TeraoantM WdjftSj Vs. Phundan ^ngh tmd otfcers1. Tn fhe instent. case, the trial Coiirt after considering the ai^uments of the respective parties, has rejected fhe application for temporary injiinction of fhe respondent/plaintiff with a cat^orical finding fhat no prima facie case exists ui favour offhe respondent/plaintifE'. However, the appellate Court without discussing the material on record and recording a CQntrary finding, has set aside (he order of the trial Court by ignoring the findings offhe trial Court, which is not permissible. He further ai^ued fhat fhe land in question was sold in the year 1979 by registered sale deed by the plamtifif through his father as his natural guardian, the plaintiff" attained majority in fhe year 1988, however, he did not assail the sale deed for a considerable period and ffled fhe siut only in fhe year 2006. Moreover, none of fh.e documents fHed by the respondent/plaintiff establishes possession of fhe respondent/plaintiff. On the contrary, fhe revenue record has been mutated way back in the year 1981 and fherefore, no prima facie case exists ui lavour offhe respondent/plauitifi'. 5. I have heard leamed counsel for fhe petttioner/defendants and perused the material available on record mcluduag the orders passed by both the Courts below. 6. Leamed Additional District Judge has aflowed fhe appeal of fhe respondent/plaintiff wifh the finding fhat demarcation report dated 23.3.2003 shows fhat fhe petitioners/defendants are not in possession over Khasra No.378/5, area 3 acres and in its place, they are in possession of Khasra No.379/ 1, area 1.70 acre, which is recprded in the name of Kalabal, w/o Patiram, who is mother of the respondent/plaintifi'. The petitioners/defendants No. 3 to 5 clainaed that they have purchased 2.50 acres of land from fhe petltioner/defendants No. 1 & 2 on 29.5.2003. However, demarcation report dated 23.3.2003 does not establish their possession. The appellate 'AIR 1989 SC 2322 Court has not even considered tfae reasonu^ and findlngs recorded by Che trial Court whUe rejecting the application for temporaiy injunction of the respondent/plaintiiT. The appellate Court ui para.graph-9 of its judgment has held fhat "only on fhe ground of sale deed and mutation in favour of fhe defendants m revenue records, it is not proved that fhq? are in possession of the suit land" and thus, fhe finding of prima facie case in favour of the plaintiff has been recorded. 7. In Phitndan Singh and others1 the Hon'ble Supreme Court has dealt with fhe scope of interference of the appeUate Coiut against grant or refusal of temporary injunction fhus: "12. It may be pointed out that it is one thing to conclude fhat fhe ti-led Coiirt has not recorded its prima facie satisfaction on merits biit granted fhe teinporsuy tnjunction and it is anofher thing to hold fhat trial Coiirt has gone wrong in recording the pruna facie satisfaction and setting aside (hat finding on the basis of the material on record because it has not considered the relevant matenal or because it has erroneousty reached the fmding or conclusions on the facts established. In fhe first situation, the appellate Court will be justi&ed in upsettir^ the order imider appeal even without goir^ uito the merits of the case but in fhe second eventuality, it caiiiiot set aside fhe impugned order without discussing the inaterial on record and reccn~ding a contrary findmg. The High Court proceeded to set aside fhe order of fhe trial Court on the first ground ignoring the aforementioned findings of the trial Court, the order under appeal is, therefore, Lmsustainable." 8. In the instant case, as already observed, fhe appellate Court has not even considered fhe findings recorded by the torial Coilrt for refusing the appllcation for temporary injunction of the respondent/plaintiff. At fhe saine time, ttie appellate Court has also not recorded any positive findir^ that the respondent/plaintiff continued to be in possession over the suit property, fhough it is recorded in the name of petitioncTS/defendants. The priaia facie case of (he respondent/plaintlff has been mferred solefy on the ground that fhe petitioners/defendants have falled to prove that they are in possession over the suit land. 9. Thus, relying upon fhe judgment in Phundan Singh and others' , I am of the opinion that there is a manifest error in exercise ofjurisdiction by the appellate Court while passing the im.pugned order as the saiue has been passed wifhout discussing the material on record and recordmg a contraiy finding. 10. In the result, the instant petition is allowed. Impugned order of Annexure P/7 passed by leamed Additional District Judge, MungeU is set aside and the order of Annexiire P/5 passed by leamed Chrtl Judge, Class-I, Mungeli is affirmed. No order as to costs. Sd/- ie 6777^20)8 Kf