IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION ( 227 ) N0. ^W-\ / 2010 PETITIONERS DEFENDANTS ^^$y ^JW ^ I^ ^.y '^/ ^' 1. Ram Kurnar Sahu S/0 Late Santram aged about 40 years R/0 Village Pura Tah. Takhatpur Dist. Bilaspur C.G. 2. Nohar Sahu S/0 Santram Sahu aged about 35 years R/0 Village Pura Tah. Takhatpur Dist. Bilaspur C.G. 3. Motiram Sahu S/0 Santram Sahu aged about 30 years R/0 Village Pura Tah. Takhatpur Dist. Bilaspur C.G. 4. Smt. Parvati Bai W/0 Ramkumar aged about 37 years R/0 Village Pura Tah. Takhatpur Dist. Bilaspur C.G. 5 .Shiv kumar S/0 Santram aged about about 38 years R/0 Village Pura Tah. Takhatpur Dist. Bilaspur C.G. VERSUS RESPONDENTS PLAINTIFFS 1. Ranin Bai W/0 Late Same Lal Kaushik about 55 R/0 Village Pura Takhatpur Dist. Bilaspur C.G. 2. Ashok kumar S/0 Same Lal Koushik about 30 Ry'O Village Pura Talchatpur Dist. Bilaspur C.G. 3. Pramod laimar S/0 Same Lal Koushik about 28 R/0 Village Pura Taldiatpur Dist. Bilaspur C.G. 4. Vinod kaamar S/0 Same Lal Koushik about 2^R/0 Village Pura Takhatpur Dist. BilaspLir C.G. WRIT PE flTION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA HIGH COURT OF CHHMTISGARH AT BILASPUR SSnale ^nch: Hon'ble Shri Justfee Prashant Kumar Mishra PEtmONERS RESPONDENTS Writ P^itkwi (227t No.4»1/ 2010 Ram Kumar Sahu and <^hers. Vereus Ranhi Bai and ofthere. Shri Amit Kumar, counsel forthe p^ionere. Shri Ravindra Agrawal, counsel for (he respondwts. WRIT PETmON UNDER MITICLE 227 OF THE CONSTTTUnON OF ORALORDBl (01.09.2010) Heard. <2) This p^ition under Articte 2?7 of ^e Constttytion pf lodia has been preferred by the defe»^ants in the suft chaUenging the order passed by the appellate Court in exercise of power uncter Section 43 Rute (1) (R) in G.P.C., allowing the plairtlffe' appeal which was preferred by them to chaltwge the qrder passed by the trtet Court on 05-01-2010 rejecting their applteation for grart of temporary in|ynGtion uncter Order 39 Rute 1 & 2 of C.P.C. (3) The ptaintiffe preferred the sutt for dectaration oftttte anct permanent injunction on thesyit land v^ich is a |»rtof the Abadi land of ttie viltage. According to the plaintiffe they have purchased the property fbr Rs.950/- fromone Balaram who execirted an yn--regj|^ agreement/receipt in thelr favour on 1(M32-19^ and detiyered possesston. It was atso slsrted that they are in peac^sful R<»s<|^onof 'the lanct however the defendante started Nerfenng i" lh<^'' nwessttatlr^ fiUng of the present sutt. An appticatipn fw ^ temporary injunction was ateo fited by the plalntiffe on similar pteadings. (4) The defendants/petitioners fited their written statement as weU as the reply to the application for grant of temporary tnjunction andjstatgd that defendant No,3 Motiram Sahu has been gramted le»8>e ofthe subject land by the Gram Panchayat on 25-06-1997 andthereskfttrtt^ defendants are in possesston. tn the femily partilspn / arrar^ement^e tend is presentty occupied bydefendantNo2N<^Sahu.^^^^^ to the defendante the entire claim of the plsunBffs is fnyplous as thw vendor Balaram was never in occupadon of the tand and there has been no transaction in between Samelal and Balaram wfth respeG* to the suit land. AccorcBng to the defendants the recei^ of sate (rf landte a concocted pece of document and tt does npt confer any tttle pn the ptaintiffe. (5) Thus, both the parties are claiming pcss^sion ofthe suft tenct, (6) The teamed trial Gourt cor^iderecl the a^icatkm 'for grarrt of tetT^orary injunction and vide its order dated 05^)1-2010 conchtded ttiat the ptainW is not in possesston ofthesuit laiid and has no prima fecte case in their favour and therefore they srenot Uk^ytosuiffer any irreparable toss and their prayer tw grant of tempc^^i^ cannot be granted. (7) The firet appellate Court h^ set-aside the cffdw ^issed t^ ttie triat Court and ha®aBowed the ptainttffe s^icattw for grant pf temporary tnjunction. ,,,^^,,,,^ M'4 \ V- { (8) The trial Court has considered the entire materiat ayaBetote on the record of the sutt amt recorded a finding that the rece^t dsfted 10-02-1982 whteh is the basis of plaintiffs' case $s not a r^i^tered document nor does tt mention the boundaries of the land or the khasra number. Similarty there te no pteading by the plsdnUffe^^ how Balaram came into possesston of the tand and in what capactty he had the authority to sate the tand in tavour of the plaintiffs pre^essor in interest Sametal. Ontheotherhand,asre(»rdedbythetri|rtCot^t,|he defendant No.3 was granted a tease of the sufa^ taTOt ^ ^e ooncemed Gram Panchayat and possession was deliyered on the basts of tease cteed dated 25-06-1997. tt has ateo been observed that the plainttffs have not chaltenged the legality ofthe (ease deect and that the defendante have reported the matter to the Ipcal pqtfce when jtheir possession was intertered and thus after evatuating all the attaming circumstances as well as the documents the trial Court found that the ptaintiff is not In possesslm of the sutt land. (9) The appetlate Court, even after observing in para 10 of the order that on perusal <rf the document/receipt reBed on by the plaintW, the boundaries ^ the land are not mentioned therein, yek hs®rerorded a fincdng that on the basis of the boundaries mentioned in plaN aand the certiftoate of possession filed by the defendante it is proyed that the land is the same. (10) tn the matter of Wamfer Ltd. amf Am^fter vs. Anfcw Wfo P. Ltcf. reportect in i999{3uppi) SCC 727 the Hon'ble Supreme Court /^as held thus in paragraph 14 of the report ,.A,, t, ^' U14. The appeats before the Dlvfeion Bench were against the exercise of discretton by the Single Ju<j^e. In such appeate, the appettate court will not irrtertere with the exerctee of dfecretion of ie court of first instance and substitute its own discr^ton except where the discr^on tias been shown to have been exercised artwtrartty, or caprteiously or perversety or where the court had ^nored the settled principtes of taw regulattng grant or refusal of intertocutory injuncttons. An appeat against exercise <rf dtscrekion is said to be an appeal on principle, Appellate court wtlt not reassess the material and seek to r^ch a conclusion different from the one reached by the court below if the one reached by that court was reasonatty possibte on the material. The appellate court would normaHy not be j^tfied in if^erfering wikh the exercise <rf discr^ion under appeal solely on the ground that if ft had constdered the matter at the triat stage tt woyld have come to a contrary concluston. If the discretion has been exercised by the triat court reasonably and In a judtelal manner the fact that the appetlate court woukl have taken a differerrt view may not justify interference with the tnal court's exercise of discretton. Afker refemng to these principtes Gajendragadkar, J. in Printers (Mysore) Pfivate Ltd. v. PothanJosephl (1960) 3SCR 7^3: (SCR 721) "... These principhss are well estsNished, but as has been observed by \fiscount Simon In Chartes Osenton & Co. v. JhanatQn 1942 AC 130 '...the (aw as to the reversat by a court of appeal of an order made by a |yc|ge below in the exercise of hte discretion te weW esitablished, artd any diffteutty that arises te due only to the apptteatlpn of weN settted principles in an inclivichjial case." The appellate judgment does not seem to defer to thte principte." .A..'^ 'Y (11) (n view of the judgment of the Hon'ble Supreme Cwrt to the effect that when the taial Court has exerofeed discretion after considering the mattere on record and the findings are not peryeree, the appetlste Court, whteh exercises Its sppettsrte jyriscU^ort s^unst the exercise of discrefion by the tilal Court, © npt entitted to itifterf|re with the ftnding recorded by the trial Court merely becaaise anpther view is possibte. The Hon'ble Supreme Court has sakt that appeal against the exercise of dlscretion is basteally an appeal on principles therefore in cases where the trial Court has considered the materfel and has thereafter refuse to exercise discreWon, or^inarUy th®aRReltate Court shouW not interfere. (12) In the present case the order passed by the trial Court is a reasoned and well considered order. The ttwee pitlare of the tCTRporary injunction i.e. the prima fecie, batance of converwence anct irreparable toss were consictered in its true perspecfive and on the basis of material avadabte on recwd. The finding recorded and reason ass^ned by the trial Court to hotd that the plaintitf does not have a prima facie case in their favour and the plaMiffe s»en<A in ppsses^on of the suft tand are m accordance wtth material on recorel. (13) In view of what has been held above,this Court is unabte to srocept the findings recorded by the first sppeUarte Court. Consequently the writ p^ition succeeds and is attowed. The Impugned order is set- aside. (14) In the facts and ctrcumstances of the case the triat CourtJs directed to dispose of the sytt as earty as possibte Rreferably wfthin a period of six months. -——~ Sd/- Prashant Kumar Mishra Judge ^