Seen. Perused the petition under Order 39 Rule 1/2 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 petition invoking an injunction order against the defendant's side.
Heard. The record is taken up for passing the necessary order.
The substance of the Petition:
The plaintiff’s case, in a nutshell, reveals that the plaintiffs had been in possession of the suit land since inheriting the same
from their predecessors. Meanwhile, an oral partition was taken place
allocating o.25 acres of land in the RS plot No. 1639. The plaintiffs also claim
that they are now in exclusive possession of the lands, comprising in that plot
measuring 0.1250 acres of lands scheduled to the petition, at the southern part
by way of cultivating mango trees.
However, the defendant No. 01, 16-17 are forcibly trying to dispossess them from the land specified in the schedule to the suit. The allegation goes as such that upon resistance by the plaintiff side, the defendants intimidated the plaintiffs and kept continuing the same. The very injunction petition is hereby placed before the court for restraining the defendants from their continuing encroachment.
Objections of the Opposite Party:
Defendant No. 01, 16-17 submitted written objections 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 phony 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 stated above replies that they purchased 0.1250 acres of lands on the western side of the plot, comprising in the RS plot No. 1639, from the subsequent heirs of recorded tenant one Shabur Sardar via registered deed No. 4184/20. Since then, they have been in exclusive possession of that suit land in question by building pakka boundary. Thus, 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 (RS khatian No. 38, deed Nos. 0665/80, 3271/99, 1861/92; and some others, it conspicuously appears to the court that the plaintiff shows some material facts which obviously carry him to the trial with his suit. Since a finding on 'prima facie case' would be a finding of fact, it appears that 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 focal issues, but they in fact legally stand beyond the instant context’s domain.
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. Here, the plaintiff states in his respective petition that they had in possession of the suit land, specifically 0.1250 acres of lands on the southern side of the plot, comprised in the RS plot No. 1639. In support of the plaintiff’s averments as such, a photograph is placed before the court for its cognizance. On the other hand, the O.P. submitted his purchased deed No. 4184/20 and claims his exclusive possession in the suit land as aforesaid. To note here, both parties to the suit were also present in the courtroom and the court asked them for explanations of the submitted image. Being asked for as such, both sides claim that they are in possession of the suit plot No. 1630 on different corners, one on the southern and the other on the western. So, both parties are presumed to be in possession of that plot but on different sides.
03. Moreover, the materials on record are unable to decisively explain the real situation of their specific possession. A copy of a lease deed regarding the suit plot is submitted herewith, but that deed was effective not beyond the end of the year 2014 so far. Even, it appears that 0.25 acres of lands of the RS plot No. 3639 were leased out, which has already lost its’ significance on the current purposes. Furthermore, the locally made allotment speaks out the same. So, there is a dubious condition regarding the issue at hand. Although the petitioner is trying to claim that a report from the land office proceeding supports their current possession and title, they place no proof that disregards the presumptive value of the defendants’ mutation khatian. So, it is contextually opined that whether the plaintiff is in exclusive possession in the specified portion of the suit land cannot be decided upon the materials available on the record right now without taking further pieces of evidence. Accordingly, it appears that although the plaintiff side cogently appears to have currently been in possession of the plot in question, it would, without taking further evidence at trial, not be conducive to deciding the petitioners’ exclusive possession of the particular location of the suit plot.
04. The next points are whether the plaintiffs are going
to suffer irreparable loss and whether the balance of convenience and inconvenience
favors them. Of irreparable injury', such injury cannot be adequately remedied
by damages. The remedy by damages would be inadequate if the compensation
ultimately payable to the plaintiff in case of success in the suit would not
place him in the position in which he was before the injunction was refused. In fact,
dispossession from the land always tends to irreparable loss, which cannot be
adequately remedied by damages. Moreover, 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. So, in applying this principle, the Court has to weigh
the amount of substantial and probable injury to either party, the court ought
to look at from the point of view of whether on the refusal of the
injunction the plaintiff would suffer irreparable loss and injury keeping in
view the strength of the parties’ case.
05. Since this is a partition suit and there are no sufficient materials on record to decide the parties’ exclusive possession of that particular plot. So, there is a real controversy regarding the specific possession, which would be decided only at trial after conducting a local investigation in this partition suit. So, considering the lack of precision, certainty, and perspicuity of such nature in the alleged ijmali possession, it is much safe to hold that speaking out about the irreparable injury alleged to have occurred to the plaintiff if no injunction were granted and decide the question of the balance of convenience and inconvenience to the parties fall short in any details to be determined due to the findings made hereinbefore. Hence, whether compensation can be an adequate remedy to the plaintiffs, or irreparable injury would be the outcome of the refusing the petition is consequently ruled out.
04. 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. 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, the court is of opinion
that interference by the Court would rather result in irreparable injury to any
party to the suit, and thus, it appears to be expedient not to intervene as
such. Keeping all of these things in the appreciation of the appearing facts
and aspects, the court is of the view that the plaintiff’s prayer for a temporary
injunction is not worth-being allowed.
Hence,
it is ordered
That
the application for temporary injunction dated 29.09.21 be disallowed on
contest.
The
next date is 27.06.2022 AD for W.S.