Full Judgment
1 W.P No.15804 o”
20. 9.2013 Dr. Anuvad Shrivastava, counsel for the petitioners. He is heard on the question of admission.
2. Petitioners/ defendants have filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 30.4.13 passed by the ADJ.Jabalpur in M.A.No.5/13 affirming the order dated 16.1.13 passed by 16th Civil Judge Class-II, Jabalpur in COS No.90-A/12 whereby the application of respondents/ plaintiff filed under order 39 rule 1 and 2 of the CPC for issuing ad interim injunction restraining the petitioners to interfere in their possession of the disputed land has been allowed.
3. Having heard the counsel at length, keeping in view his argument , I have carefully gone through the papers placed on the record along with both the orders of the courts below. It is apparent fact on record that the disputed land was sold by the father of the present petitioners to respondent No.1/ plaintiff through registered sale deed dated 31.3.92 and as per allegations of the respondent since the date of such sale deed, after obtaining the possession, he is coming in possession and cultivating the same till filing the suit. Subsequent to death of father of the petitioners/seller, the petitioners were interfering in possession of the respondent, on which, on the strength of the sale -deed so also on the basis of the revenue record in which the name of the respondent was mutated on the strength of the aforesaid sale deed, the suit for perpetual injunction was filed by the respondent. In pendency of the same, the aforesaid application was filed. Such suit as well as the application was opposed on behalf of the petitioners stating that the disputed land was not the exclusive land of their father. The same was the co-ownership property of three persons including their father and even after execution of the sale-deed, the possession of the same was never handed over to the respondent and the petitioners are still coming in possession of the same. It is also stated that the impugned 2 W.P No.15804 of 2013 proeperty being the property of co-ownership, the interlocutory injunction could not be granted in favor of the respondent, and in such premises, prayer for dismissal of the IA was made. On consideration, the trial court on the basis of the aforesaid sale-deed and mutation, allowed the application of the respondent and issued the interlocutory injunction against the petitioners as stated in the impugned order. On filing the appeal, after extending opportunity of hearing to the parties, by affirming the order of the trial court, the same has been dismissed.
4. The aforesaid factual matrix as stated before the courts below were demonstrated before me but in view of the concurrent prima facie approach of the courts below holding prima facie case in favor of the respondent so also the balance of convenience in his favor with the finding that if the interlocutory injunction is not granted in favor of respondent No.1 then he has to suffer irreparable injury, the impugned order was passed by the trial court and same was affirmed by the appellate court. So, in such premises, I have not found any merits in this petition even for admission. Consequently, the petition deserves to be and is hereby dismissed at the stage of motion hearing.
5. However, it is observed that any observation or the finding made by the courts below in the orders impugned or by this court in the present order shall not come in the way of the parties as well as the trial court on appreciation of evidence and deciding the matter on merits and the merits of the matter shall be considered without influencing from any observation or the findings given by the courts below in the impugned order or by this court in the present order.
6. Petition is dismissed as indicated above. (U.C.Maheshwari) Judge MKL