ORDER
A.S. Godara, J.
1. This Civil Revision Petition has been filed against the appellate order dated 10-9-1997 passed by the Addl. District Judge No. 2, Bikaner in C.M.A. No. 109/96 thereby dismissing the appeal of the plaintiff-petitioners and affirming order dated 17-8-1994 passed by the Civil Judge (JD), Bikaner, who had disallowed application for temporary injunction filed by the appellant-petitioners.
2. Briefly stated, the facts giving rise to the present petition arc as follows :
The plaintiff-petitioners filed a suit for permanent injunction in the trial Court and so also moved an application for temporary injunction with a prayer that the defendant-respondent be restrained from interfering with the possession of the petitioners by way of dispossing them from the suit premises which are five shops described as 19-G, 19-H, 19-I, 19-J and 19-K situated near the Jassu Gate, Bikaner. Besides, it may also be mentioned that plaintiffs' case is that plot of land measuring 10 x 100 ft. whereat the suit premises are presently, constructed and located, was in the exclusive use and possession of the plaintiffs for more than last 30 years and during the beautification campaign started by the defendant-respondent, the U.I.T. authorities decided to regularize the possession of the persons who were in occupation of plots in the said area and. accordingly, the defendant proposed to the plaintiff that the U.I.T. would be construting shops on the area measuring 10 x 100 ft. which were in possession of the plaintiffs and in case the possession was handed over to the U.I.T., after construction of shops on the same land, five shops would be allotted to the plaintiffs alone. The U.I.T. constructed ten shops on the land and the present dispute relates to five shops-which the defendant is alleged to have promised to be allotted to the plaintiffs alone which are located and distinguished by Nos. 19-G, 19-H, 19-1, 19-J and 19-K. The plaintiffs also applied for allotment of these five shops to them accordingto rules and, as a result of negotation. Shop No. 19-G was already regularised in the name of the plaintiff Ganeshu Ram while application for allotment of other four shops were pending with the U.I.T. Besides, it was also claimed that the plaintiffs were in possession of a plot measuring 27 x 10 ft. whereat they were storing and carrying on the business of fodder and the same was being used as a 'TAL'. The U.I.T. in its meeting dated 6-11-1986 decided to regularise six shops in the name of the previous occupant in the same area.
3. Previously, the U.I.T. served the plaintiffs with a notice dated 5-1-1981 that they should appear before it and explain their unauthorised occupation of the disputed land and, on appearance and explaining the background of the possession and their claim, the U.I.T. decided to allot two shops 19-G and 19-H in the names of Ganesha Ram and Bhanwar Lal plaintiffs whereas allotment of three other shops in the names of their co-plaintiffs, the matter was kept pending and reports and comments in respect thereof were asked for and, lastly, on 15-6-1992 it was reported that Satya Narayan and Nand Kishore were also in possession of the land whereat the shops were contracted, as above, and the matter of regularisation of shops in the names of Satya Narayan and Nand Kishore were pending on the ground of their old possession on the disputed land which could not be regularized so far.
4. On 9-3-1994, the plaintiffs were threatened to be dispossessed from the disputed site of the shops and the land referred to above and hence the plaintiffs instituted the suit as well as application for temporary injunction with a request that the disputed land measuring 10 x 27 ft. marked in red colour in the enclosed map as well as shops marked 19-G, 19-H, 19-I, 19-J and 19-K respectively, being, presently, in possession and under the use and occupation of the plaintiffs since long, as above, be not got vacated from the possession of the plaintiffs and the defendants also be restrained from allotting the same premises to any other person.
5. The learned trial Judge did not find prima facie case, balance of convenience and the fact of irreparable injury, in case of non-appearance of temporary injunction, existing in favoure of the plaintiff-petitioners and so the prayer for issue of temporary injunction was dis-allowed resulting in filing of appeal in the Court of District Judge.Bikaner who, in turn, made over the appeal for disposal, to the Addl. District Judge No. 2, Bikaner, who, vide his impugned appellate order, agreeing with the findings arrived at by the trial Court, while affirming the order of trial Court, dismissed the appeal and hence this Revision Petition, as above.
6. I have heard the learned counsel for the petitioners as well as the learned counsel for the respondent and have also gone through the impugned orders along with the material made available for perusal at the time of the final hearing and considered the same carefully.
7. The learned counsel for the petitioner submitted that the plaintiff-petitioners were in long exclusive and peaceful possession of a plot measuring 10 x 100 ft. and, subsequently, as already referred to hereinbefore, at the instance of the local authorities including the Secretary, U.I.T., Bikaner, the plaintiffs agreed to part with possession of half portion of the plot measuring 10 x 50 ft. in favour of the U.I.T. on the promise by the latter that on the remaining portion of the disputed land measuring 10 x 50 ft. shops would be constructed by the U.I.T. and the same would be allotted to the plaintiffs and it was pursuant to this promise made by the defendant--U.I.T. that the plaintiffs Ganesha Ram and Bhanwar Lal deposited Rs. 10,000/- on 6-9-1986 and 10-9-1986 with the U.I.T. for allotment of one shop each measuring 10 x 10 ft., while case of other plaintiff-petitioners was pending for regulari-sation and allotment of remaining three shops to their co-plaintiffs. However, since there was a dispute in regard to price to be charged for the shops to be allotted and regularised in the names of the plaintiffs with the defendant--U.I.T. and, meanwhile, the threatened notice of their eviction and dispossession from the disputed property was slapped on them and, therefore, the learned counsel for the petitioner further submitted that the matter of regularisation and allotment of the disputed three shops other than 19-G and 19-H was pending with the defendant -- U.I.T. and since they were so in possession of the disputed site and a portion of which was vacated on the promise made by the defendant -- U.I.T. that the disputed shops would be allotted and regularised in the names of the plaintiffs only and, therefore, they had allowed construction of the disputed shops on the same portion inspite of me fact thatthey have produced the rent receipt in respect of the disputed land beginning from 21-5-1961 issued by the Municipal Council, Bikaner and, therefore, the plaintiffs' contention is that as long as the dispute regarding allotment and regularisation of the disputed shops is finally settled, they could not be dispossessed from the disputed shops and site and hence prayer for issuance of temporary injunction was made but, inspite of the fact that all the three necessary factors were existing in favour of the plaintiff-petitioners but the learned trial Judge conveniently and in a superfluous way, in absence of the correct and objective appreciation of the dispute, arbitrarily rejected prayer for issue of temporary injunction in favour of the plaintiffs and, consequently, the learned appellate Judge also, similarly, upheld the order of dismissal and the orders passed by both the lower Courts suffer from infirmity as well as material irregularity calling for interference by this revisional Court.
8. However, the learned counsel for the respondent submitted that Ganesha Ram as well as Bhanwar Lal were required to deposit balance amount of price of the shops decided to be regularised in favourof both the plaintiffs in case each of them deposited a sum of Rs. 10,000/-whereas, admittedly, both the them did not deposit full amount of Rs. 20,000/- each against the shop Nos. 19-G and 19-H proposed to be regularised in favour of Ganesha Ram and Bhanwar Lal and besides, no formal regularisation or allotment was decided in favour of the plaintiffs and, accordingly, they have no right, title or interest in the remaining three disputed shops and, therefore, when the plaintiffs Ganesha Ram and Bhanwar Lal failed to deposit balance price of two shop Nos. 19-G and 19-H whereas as regards the other shops they did not have any right to seek injunction, in respect thereof. Besides, the learned counsel for the petitioner also produced record of the defendant-U.I.T. showing the proceedings regarding dis-possession of the plaintiff-petitioners from the Shop Nos. 19-1, 19-J and 19-K as well as the adjoining site and, therefore, he has submitted that as regards the disputed shop Nos. 19-1, 19-J and 19-K, at present, plaintiff-petitioners already stand dis-possessed of and, besides, shop Nos. 19-J and 19-K were previously allotted to Jagdish and Ghanan Ram respectively and they had already been handed over possessionof the same premises and, therefore, the learned counsel for the respondents submits that the impugned orders are just and proper and call for no interference.
9. As already discussed hereinbefore, the plaintiffs' case is that they were in long old possession of the disputed land and, consequently, they parted with half portion of the same on the compromise of the defendant-U.I.T. that the shops to be raised onthe remaining half portion measuring 10 x 50 ft. shall be allotted and regularised in the names of plaintiff-petitioners and, consequently, five shops were raised on this portion of the land. However, as the record shows, so far as shop Nos. 19-G and 19-H are concerned, the defendant-U.I.T. accepted and depositedRs. 10,000 each against price of these two shopsand the dispute going on between the parties is that the defendant-U.I.T. is asking for a price of Rs. 20,000/- for each shop whereas the plaintiff-petitioner's claim is that they were promised to be allotted these shops, against a fixed price of Rs. 10,000/- each, though, subsequently, it appears that they were also willing to pay balance amount of each shop. Therefore, so far as these two shops, which the plaintiffs also claimed to have been regularised in their names and the balance amount of price against each of these two shops was being demanded from the plaintiff-petitioners, make out a prima facie case in favour of the plaintiff-petitioners and, the remaining dispute whether the plaintiffs are also entitled to deposit balance amount of Rs. 10,000/- or so against each shop pursuant to be regularised in the names of Ganesh Ram and Satya Narayan could be deposited or not, whether they have got any right, title or interest in these shops, is to be decided after full-fledged trial of the suit and not before.
10. Since there is a strong triable case as regards to shop Nos. 19-G and 19-H and, accordingly, in respect of the two shops, when prima facie case is made out, consequently, the balance of convenience as well as, in absence of any temporary injunction, resulting of irreparable loss, is also established in favour of the plaintiffs since they shall also be otherwise deprived of the possession of these shops as well, as they are found to be in possession of the shops and the disputed land on which these shops have been constructed for the last more than 30 years and, resultantly, the learned trial Judge failed toappreciate this aspect of the dispute in its right perspective while treating case of these two shops also similar to the dispute of remaining three shops.
11. So far as three remaining shop Nos. 19-1, 19-J and 19-K, the proceedings so conducted by the defendant-U.I.T. during the pendency of the suit when there was no stay order maintaining the status quo against the defendant-respondent, on 17- -1997 (sic) itself, the possession of these three shops were taken over by the defendant-U.I.T. out of which two shop Nos. 19-J and 19-K already stand allotted to and their possesison being handed over to Jagdish and Chanan Ram allottees and it may also be mentioned that these three shops were never allotted to or regularisedin the names of the plaintiffs and, therefore, whenneither whole nor in part any amount against the price of these three shops were ever deposited with the defendant-U.I.T., the plaintiffs did not have any right, title or interest in these three shops. Though the plaintiffs have come forward with a plea that due to oral negotiation and similar oral assurance, they had parted with possession of the suit property to allow defendant-U.I.T. to raise construction of shops on the condition that the five shops to be raised on an area of 10 x 50 ft. shall only be allotted and regularised in the names of the plaintiffs but. in absence of the record or any other material in support of this version, at present in view of the aforesaid subsequent development , as regards the claim of the plaintiff-petitioners on the shop Nos. 19-I, 19-J and 19-K, there is absolutely no prima facie case existing in favour of the plaintiffs, for issuance of any temporary injunction as asked for and so also the facts of existence of balance of convenience and irreparable loss, in absence of temporary injunction, are not established in favour! of the plaintiffs and, consequently, to this extent, neither the lower Court nor the lower appellate Court committed any illegality or irregularity while holding that there was no case for issue of temporary injunction in respect of these three shops in favour of the plaintiff-petitioners.
12. On the basis of above discussion, so far as the present condition is concerned, the plaintiffs have a strong case for grant of temporary injunction during the pendency of the suit in respect of the shop Nos. 19-G and 19-H, whereas,none in respect of the remaining three shops and, therefore, as regards wholesome rejection of the temporary injunction of the plaintiff-petitioners by the trial Court and affirmance thereof by the lower appellate Court, the same suffers from material irregularity and it has apparently resulted in irreparable injury to the plaintiff-petitioners in respect of these two shops and, consequently, this petition deserves to be accepted in part.
13. As a result, this petition is allowed in part thereby partly setting aside the impugned orders passed by the lower Courts dated 17-8-1994 and 10-9-1997 thereby, restraining the defendant-respondent from interfering with the possession of the plaintiff-petitioners on the disputed shops Nos. 19-G and 19-H till final disposal of the suit. Meaning thereby that the defendant-respondent shall maintain status-quo in respect of these two shops as it was prevalent on the date of institution of the suit itself. However, as regards prayer of the plaintiffs in respect of the remaining three shops, in this respect, the impugned orders call for no interference and to this extent, the same are affirmed. No order as to costs.
14. This Revision Petition is disposed of accordingly.