A o ^ ,^-z- IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fCHHATTISGARH) WRITPETITION f227') N0. t^002- QF 2009 PETITIONERS PLAINTIFFS ^l. Bhanmati, aged about 50 years D/oLate Motilal Satnami; ^ \^^.. 4-v;^^...--' ^^ "^.-- .,^':M^"' ^^.?'^..>"" ••::^y RESPONDENTS DEFENDANTS /1. Premu, aged about 58 years Son of Late Manbodhi Satnami; Both resident and cultivator of Village Barchha (Sadaiv), Tahsil Mungeli, District Bjlaspur (C.G.). VERSUS Ramadhar, aged about 14 years Son of Sadhelal, Minor, through Guardian ad litum father Sadhelal Son of Birijlal Satnami; Sadhelal, aged about 50 years Son of BJrijlal Satnami; Both resident of Village Barchha (Sadaiv), P. C. No. 37, Tahsil Mungeli, District Bilaspur (C.G.). State of Chhattisgarh, Through: The Collector, Bilaspur (C.G.). WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA , 2. mCH COURT OF CmiATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra Writ Petition (227) No. 4002/2009 PETITIONERS RESPONDENTS Bhanmati and another Versus Ramadhar and others Appearance: ' Shri G.P. Kurre, counsel for the petitioner. Shri F.S. Khare, learned counsel who has j51ed power on behalf ofrespondentsNo.l and2 pleads no mstructions. Shri R.R. Sinha, Panel Lawyer for respondentNo.3. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTmJTION OF INDIA ORALORDER (23.11.2010) The petitioners have called in question the order passed by the appellate court allowing the appeal preferred by the respondents No.l and 2 under Order 43 Rule 1 (r) ofCPC and setting asidethe order of temporary injunction granted in favour ofthe petitioners by the trial ^. court. (2) The petitioners/plaintiffs have preferred a suit for declaration oftitle and pennanent injunction. They are clainling title as legal heir of Motilal in whose name the subject property was recorded in tihe revenue records. Motilal died on 10/11/2005. (3) The defendants are claiming title on the suit property on the basis of will allegedly executed by Motilal in their favour on 21/05/1996. . z- (^ ; .\,\ • i, V (4) Undisputedly, after death of Motilal, name of the plaintififs were recorded in the revenue records, however under fhe orders passed by the concemed Tahsildar on 13/07/2006 name of the defendants came to be recorded by deleting the name ofthe plaintiffs. (5) This order was set aside by the Sub Divisional Officer vide its order dated 30 April, 2007 and thereafter name of the plaintiff was again recorded in the revenue records. (6) Leamed trial court, by a detailed order, had allowed plaintiffs prayer for grant oftemporary injunction after recording a finding that in view of the order passed by Sub Divisional Officer in appeal setting aside the order of mutation in favour of defendants, the plaintiffs are the bhoomi swami of the suit lands. It has also been found by tfae trial court that tfie plaintiffs appear to be in possession ofthe suit land from begmning and thus there is a good prima facie case and balance ofconvenience in their favour. (7) Regarding the validity ofthe will, leamed trial court observed, that the same can only be decided at fhe end oftrial. (8) The first appellate court has allowed the appeal preferred by respondents No.l and 2 and has set aside the order granting temporary injunction in favour ofthe petitioners. The appellate court has mainly relied upon andwas impressed by the fact that tfae will in favour ofdefendants is a registered will which cannot be ignored. (9) The first appellate court has not dealt with the reasoning assigned by the trial court and hasrecorded an independent finding h ^F ,^'.^ 1%^ (e\ about the existence of prima facie case and balance of convenience. On perusal ofthe appellate order, it would further appear that fhe appellatecourt has not expressly set aside or recorded its own finding about the possession ofthe plaintiffs on thesuit land. (10) In the matter ofWander Ltd. and Anoflier Vs. Antox India P. Ltd. reported in 1990 (Supplementary) SCC 727, fhe Hon'ble Supreme Court has held thus in paragraph 14 ofthe report:- "14. The appeals before the Division Bench were against the exercise of discretionby the Single Judge. Insuch appeals, the appellate court will not interfere with the exerci^ ofdiscretion ofthe caurt offirst mstance ayid substitute its own eHscretion except where the discretion has been shown to have been exercised arbitrarily, or capricwtisty or perversety or where the court had igfiored the settled principles oflcm regulatmg grant or rejusal ofinterlocutory injunctions. An appeal against exercise cf discrefion is said to be an appeal on principle. Appellate court willnot reassess the material andseek to reach a conclusion diffew:ntfitom the one reachedbythe eourt below ifthe one reached by thatcourt was reasonably possible on the material. The appellate court would normalty not bejustifled in interfering ^ith the exercise of discretion zmder appeal solely on tke grcmnd that ifit had considered the niatter at the trial stage it ^would have come to a contrary conclusion. Ifthe discretionhas been exercised by the trial courtreasonably cmd in ajudicial mcvmer the fact that the appellate court would have taken a diffemnt viewmayrwtjusttfy intevference wifh the trial court's exercise of discretion. After wferring to these principles Gajer^ragadkar, J. in Printers (Mysore) Private Ltd. v. PothanJoseph (1960) 3 SCR 713 (SCR 721) •:?r"'"3%,. ^; "'^ }y/r~ -'.£^1 !1;^.'.-.-.^S-N% 1 ^ ^' -^•^i^ ,,;; "^M: -4-- ^: "...These principles are well established, but as has been observed by Viscount Simon in Charles Osenton <& Co. V. Jhematon 1942 AC 130 '...the law as to the reversal by a court of appeal ofanorder mwk by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the appUcation ofweH settled principles in an mdrvidual case'." The appellate judgment does not seem to defer to this principle." (11) Applying the above stated principle in the facts ofthe case, it is to be noticed that the appellate court has set aside the order passed by the trial court by recording its independent finding. (12) This court has pemsed both fhe orders. The trial court has assigned reasons for finding that the plaintiffs have a prima facie case in their favour and balance ofconvenience also lies in their favour. (13) While recording the said finding the trial court has not committed any illegality nor has recorded any irrational or illogical finding. Three pillars of femporary mjunction namely prima facie case, balance ofconvenienceand irreparable loss has been considered by the trial court in its right perspective. The appellate court, being a court dealing with an appeal against the order passed by the trial court in its discretionary jurisdiction is a court hearing appeal on principle and as such it was not entitled tosubstitute its own finding to allow the appeal when the trial court has not faulted with while with the fhree principles ofgrant oftemporary injunction. '% ^' '^ ^ o^ -5' (14) In the opinion ofthis court, fhe appellate order desen/es to be interfered in exercise of jurisdiction un^er Article 227 of the Constitution oflndia. (15) In the result, the instant petition succeeds and is allowed. The impugned order is set aside. The order passed by the trial court is restored. Sd/- Prashant Kumar Mishra Judge