/ /, M/ HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal No. 27 of 2003 APPELLANTS Sita Ram and others Versus Jivan Lal and others RESPONDENTS ORDER Post fori 9 —4-2O 10 St!!— N. Kn Agarwal Judge \— J«‘“ / A f ¢ 11 HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. ApLeal No; 27 of 2003 APPELLANTS 1. Sita ram aged 44 years son of DEFENDANTS Jairam Sahu 2. Pradeep Kumar aged 19 years, son of Tulsi Ram Sinha 3. Sandeep Kumar aged 16 years soh of Tulsi Ram Sinha, Minor through natural guardian mother Mst. Indra Bai aged 37 years Widow of ' Tulsi Ram Sinha Chandu Lal aged 55 years, son of Manohar Sahu ‘ 5. Suraj aged 52 years son of Ajit Sahu 6. Awadh Ram aged 41 years son of Tiharu Sahu A11 resident of Badi Kareli Tahsil Kurud District Dhamtari r Versus RESPONDENTS 1. Jivan Lal aged 42 years son of PLAINTIFFS Banshi Lal Sahu DEFENDANTS No. '2. Murha Ram Sahu aged 38 years 7 and 8 ‘ son .of Banshi Lal Sahu ‘ ’ Bitawan Bai aged 7O years Wife of x Banshi Lal Sahu A11 resident of Village Badi Kareli Tehsil Kurud Distt. Dhamtari (CG) PLAINTIFF 4. Phul Kunwar widow of Ramadhar resident of village Badi Kareli, Tehsil Kurud Distt. Dhamtari 5. State of Chhattisgarh through Collector Dharntari DEFENDANTS SB:- Hon. Shri N.K. Agarwal, J. PRESENT :— Shri G.S. Agrawal, Sr. Adv. with Shri K.R. Nair, Adv. for the ‘ appellants. ' Shri Bhaskar‘Payasi, Advocate, for respondents No. 1 to 3. Shri Sameer Behar, Panel Lawyer, for the State. ORDER ‘ I (Q3 4-2010) Being aggrieved and dissatisfied with the order dated 30- 10~2002 passed in Civil Suit No. 57—A/2002 by the Additional District Judge, Dhamtari—v granting temporary injunctionlin favour of respondents No. 1 to 3, the instant miScellaneous appeal has been preferred by the defendants No. 1 to 6. 2. Facts of the case in brief are as under:_ 3. Respondnts No. 1 to 3 plaintiff filed Civil Suit No. 232— A/83 against Roop Bai, widow of Shankar seeking relief of declaration to declare the suit property as joint Hindu family property of respondents and Roop Bai. The above suit was dismissed by the trial Court holding the suit property is of Roop Bai. The respondents no. 1 to 3 preferred First Appeal No. 20‘A/91. During the pendency of that appeal, Roop Bai died and Ramadhar, husband of Phul Kunwar / respondent no. 4 herein was substituted in her place as her legal representative based on Will. The suit property stands mutated in his name. During pendency of the first appeal, said Ramadhar transferred the suit property by way of registered sale deed » 'in— appellant’s favour. Later on the first appeal was also dismissed. The respondents No. 1 to 3 preferred a second appeal. During the pendency of the second appeal, Ramadhar died and name of respondent No. 4 was substituted in his place as his legal representative. The second appeal ended with a compromise decree passed on 13-7—2000. 7. Thereafter the present suit was filed by the respondents No. j 1 to 3 against respondents Phul Kunwar claiming relief of declaration Of title over the suit property and permanent injunction to restrain the appellant from interfering in their possession over the suit property. In para 7 of the plaint it has been stated that the appellant is intending to trespass over the suit property pursuant to the sale'deed executed by Ramadhar which is forged, also preferred an application under Order 39 Rule 1 and 2 of C.P.C. claiming relief of / temporary injunction to restrain the appellant from interfering in their possession over the suit property till decision of the suit. The trial Court vide impugned order allowed the application, restrained the appellant from interfering in their possession over the suit property till decision of the suit. Hence this appeal. Shri G.S. Agrawal, learned Sr. counsel for the appellant would contend that the suit property was transferred in appellant’s favour by late Ramadhar, husband of Phool Kunwar way back in the year 1995 vide registered said deed and also handed over its possession. Name of respondent No. 4 Phool Kunwar was substituted during the pendency of second appeal as legal representative of deceased Ramadhar. She cannot take any stand which is not appropriate/inconsistent to her character as legal representative of deceased Ramadhar. When Ramadhar himself transferred property in appellant’s favour, nothing remains thereafter for compromise. The appellant was in possession of the suit property and in such state of affair when the appellant is in possession of the suit property, learned Trial Court went wrong in granting temporary injunction in favour of respondent no. 1 to 3 restraining the appellant from interfering in their possession over the suit property. The order being illegal deserves to be set aside. 10. On the other hand, Shri Bhaskar Payasi, learned counsel for the respondents No. 1 to 3 Would submit that the suit ‘ property was transferred vide registered sale deed in appellant’s favour by late Ramadhar in violation of temporary injunction which' was in operation against him in the first appeal; the appellant purchased the suit property during the pendency of proceedings which ended in compromise decree and respondent became its title ‘holder. Thus the said transfer was pending suit relating thereto. The property cannot be transferred or otherwise dealt with by any parties to the suit or proceeding so as to affect right of any other party thereto under any decree or order Which may be made therein. The land stands mutated in their name and therefore learned trial Court has rightly allowed their apphcation for grant of temporary 1njunct10n and rightly restrained the appellants from 1nterfer1ng 1n thelr possessmn over the suit property, holding appellants in possession of the suit property. 11. I have heard learned counsel for the parties and perused the order‘impugned and the record of the trial Court. 12. A bare perusal of para 7 of the plaint would reveal that earlier it was pleaded that the appellant is in possession of the suit property as trespasser in pursuance of forged document and later on, after the word “KABIJ” in place of word “HAIN” words “KARNA CHAHTE HAIN” has been added. In para 6 of the plaint allegations were made against late Ramadhar husband of respondent No 4 that he 1n collus1on With revenue authorlties got entered his name 1n the revenue record over the suit property 1n place of Roop Bai and taking benefit of above revenue entry, transferred the suit land in appellant’s favour which is void and ineffective. On one hand, the respondent No. 1 to 3 have challenged the title of Ramadhar over the suit property and on the other hand, they are claiming ownership over the suit property in pursuance 'of compromiseventered into with Phool Kunwar i.e. widow of late Ramadhar whose name was substituted during th pendency of second appeal in place of late Ramadhar as his legal representative. If Phool Kunwar/respondent No. 4 has any title over the suit property and was having right to confer title to respondents by entering into cdmpromise, then the title was also. withllate Ramadhar to transfer the suit property as per his choice to any person. By taking into consideration the entire facts, prima facie, one thing is clear that the respondent No. 4 Phool Kunwar was not in e possession of the suitproperty at the time of entering into compromise with the respondents No. 1 to 3, possession was transferred by her husband Ramadhar in favour of the appellant. Whether the appellant is in possession of the suit property as rightful owner or as trespassers is a question to be decided by the trial Court in the suit. In order to grant temporary injunction in favour of a party to restrain other party from interfering in its possession, first and foremost point for consideration would be whether or not such party is in possession of the suit property. If such party prima facie not found in possession then temporary injunction restraining other party from interfering in their possession cannot be granted. In the present case, the respondent could not establish by producing any material how they acquired possession of the suit’property. 13. It is no doubt true that granting or refusing of an order of injunction is in the discretion of trial Court but if trial Court has not exercised its discretion judiciouSly and 'passes order ignoring the settled norms, then the appellate Court would certainly upset the order. Learned trial Court has recorded a finding that respondents No. 1 to 3 are in possession of the suit property since 1986-87 whereas they are claiming title and possession in pursuance of the compromise decree dated 13—7-2000, therefore, on the face, the above finding recorded by the trial Court is not proper. It is also not the case put—forth by the respondents/plaintiffs that they are in its possession before they acquired its ownership by compromise. When said Ramadhar had already transferred the suit property and handed over its possession to the appellants then the respondent No. 4 Phool Kunwar was not in a position to hand over the possession of the suit property to plaintiffs. a l4. In view of the above, prima facie finding recorded by the trial Court regarding plaintiffs’ possession over the suit property is on the face incorrect. The plaintiffs prima facie not being in possession of the suit‘property, injunction cannot be granted to restrain the appellant from interfering in their possession. 15. In View of the above, in the considered opinion of this Court, learned trial Court went wrong in granting injunction in favour of the respondents / plaintiffs against the appellant. The order being not sustainable in law deserves to be and is hereby set aside; The appeal is allowed. However, in order to balance equities, it is directed that the appellant shall not alienate the suit property or transfer it in any manner during the pendency of the suit. The trial Court is directed to decide the suit expeditiously without being influenced by any observation made by this Court. The appeal is allowed. l6.