Seen. Perused the petition under Order 39 Rule 1 with section 151 of the 1908 Code of Civil procedure, and the supporting affidavit, written objection thereto, submitted documents, and the record. On such perusal, it appears to the court that this is a suit for Partition. The plaintiff also placed a new petition invoking an ad interim injunction order against the defendant's side.
Head. The record is taken up for passing the necessary order.
The substance of the Petition and Written Objections:
The plaintiff’s case, in a nutshell, reveals that CS recorded tenants were Khesmon Bibi and Masis Bibi, who transferred 92 decimal of land to one Hasan Ali, whose name appeared in SA khatian No. 20. Through purchase, RS record was prepared in the name of Mithon Sardar along with others. Mithon Sardar then transferred 12 decimal out of 24 decimal land to the plaintiff through the deed No. 40350. The plaintiff then has mutated his name and a prostabito khatian is prepared in his name. The plaintiffs also claim that the defendant is forcibly trying to dispossess them from the land specified in the schedule to the petition. The very injunction petition is hereby placed before the court for restraining the defendants from their continuing encroachment.
On the other hand, the defendant No. 01 Ga, 01 Umma, and 13 submitted written objection thereto, the brief of which encapsulates that the averment of the plaintiffs on the fact of the aforesaid forceful dispossession from the land specified in the schedule to the suit is totally fake and falsified. The fact of the resistance by the plaintiff side caused towards the defendants, who intimidated the plaintiffs and kept continuing the construction on the land in question, is fabricated and has been brought into being for causing damages to the defendant. Instead, the defendants claim that no tenant of the RS khatian No. 87 transferred any land to the petitioner or his predecessors via registered deed No. 40350/74. They also claim that the petitioner has no possession of the suit land in question. Instead, the defendants asserted that they have been in exclusive possession of the suit land in question as such. Hence, due to lacking of prima facie case and possession, inter alia, the petition is liable to be dismissed.
Point for determination: Whether the plaintiff may get the relief prayed for?
Discussions and Decisions:
No doubt, the so-called trinity of principles on which rests the foundation of any order of injunction is the cornerstone of a party’s pleadings. On careful perusal of the pleadings’ averment and the respective petition along with submitted documents, CS, SA and RS Khatian, Prostabito Khatian, and deed No. 40350/74, it conspicuously appears to the court that the plaintiff shows some material facts which obviously carry him to the trial with his suit. In the consideration that a finding on 'prima facie case' would be a finding of fact, a substantial question has already been raised bona fide, which needs investigation and a decision on merits. Therefore, since the plaintiff side demonstrates a ‘good and arguable case’ in his favor by raising a fair question for determination; it is needless to put that a prima facie case is vividly established (not to be confused with prima facie title). However, the defendants’ robust assertion of facts fairly outlines some considering issues, but they in fact legally stand beyond the domain of the instant context.
02. As this is a suit for partition, it would be trite to say that as per the record, both sides are in joint possession of the whole land scheduled to the plaint. But the plaintiff states in his respective petition that he had been in possession of the suit land, specifically 12 decimal out of 24 decimal land comprised in RS khatian No. 87, in the southern side of the plot No. 137. In support of the plaintiff’s averments as such, some de jure possessory documents are placed before the court for its cognizance. To note here, both parties to the suit were also present in the courtroom and the court asked them for their contrary explanation as to possession. In addition, the petitioner turned up before the court with numerous details as to his possession in the suit land. However, it appears that, without taking further evidence at trial, it is not opportune to decide whether the plaintiff or the defendants are in exclusive possession of that particular land.
03. The next point is the balance of convenience and inconvenience, meaning a ‘comparative hardship or mischief’ that is likely to be caused to a party if the injunction is refused, will be greater than that it is likely to be caused to the other party if the injunction is granted. In applying this principle, the Court has to weigh the amount of substantial and probable injury to either party. Apart from a prima facie case and a balance of convenience, the petitioner must establish also a case of ‘irreparable injury’ to occur to him if no injunction were granted. As the aforesaid narrative vividly discloses the fact that the suit is a partition suit and both the parties have share therein until shares are allocated separately or devised in the legally sustainable instruments. So, it appears that if they (parties) are not stopped from attempting to dispossess or threatening for dispossession, the nature of the land might be changed or the purpose of the suit be frustrated. Conversely, financial hardship might be caused to any party if any construction is built in the suit land; that could be construed as irreparable injury. In addition, dispossession from land always tends to irreparable loss, which cannot be adequately remedied by damages. The issue is, in fact, to be looked at from the point of view as to whether on the refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case. Therefore, as the principle governing injunction as well as status quo is on the same footing, it is the court’s view that the balance of convenience appears to be in the preservation of the status quo.
04. It is further well-conversant that the phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity to meet myriad situations presented by man’s ingenuity in given facts and circumstances; so always is to be hedged with sound exercise of judicial discretion to meet the interest of justice. Therefore, while making decisions regarding injunction, the Court also ought to be circumspect and look to the conduct of the party. So far as the instant suit is concerned, it transpires that the very injunction petition was filed when the defendant side was about to build any construction on the suit lands. As a result, it transpires that if the opposite party is not restrained in whatsoever manner, the petitioners would suffer irreparable loss and injury that cannot be compensated by way of damages.
Therefore, the court is of opinion that non-interference by the Court would result in irreparable injury to the party seeking relief and the petitioners need protection from the consequences of apprehended injury. Since the possession of the suit property is sufficiently ascertained to so far as the materials on record suggest for a status quo position, it thus appears to be expedient to maintain the status quo in the present context. As such, on considering all of the aforesaid appearing facts and weighing the competing possibilities of the likelihood of comparative injury, the court is of a view that the subject matter should be maintained in the status quo.
Hence, it is ordered that the parties to the suit are hereby ordered to maintain the status quo, as appeared to date in respect of the suit landed property scheduled to the petition for temporary injunction dated 01.04.2021. The application for temporary injunction dated 01.04.2021 is, thus, disposed of on contest.
Put requisite(s) at once.
Inform the Ld. Advocate(s) for the parties to the suit of this order.