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Upendra Das and anr. Vs. Krushna Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 445 of 1970
Judge
Reported inAIR1972Ori12
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 1
AppellantUpendra Das and anr.
RespondentKrushna Sahu and ors.
Appellant AdvocateB.B. Mohanty, Adv.
Respondent AdvocateS.N. Sinha, Adv.
DispositionRevision allowed
Cases Referred(Orissa) (Baroia Setti v. Dadhibaban Swamy
Excerpt:
.....8. the principles on which the exercise of discretion rests are well-settled. they are- (i) in the facts and circumstances of each individual case there must exist a strong probability that the petitioner has an ultimate chance of success in the suit. the plaintiffs have therefore a fair chance of success in the suit itself and the probability of their being entitled to the relief asked for is in their favour. the first condition is fully satisfied......lands to laxman das. on 21-5-1963 suka sold the disputed lands to the plaintiffs. laxman filed title suit no. 89 of 1963 for declaration of title and confirmation of possession against the plaintiffs. on 22nd of august 1963 that suit was compromised. in the compromise decree the title of the plaintiffs was declared and their possession was confirmed. on 27-12-1968 laxman sold 0.37 acre to krushna sahu (opposite party no. 1). out of 0.37 acre. 0.03 acre was out of khata no. 455 and 0.34 acre out of khata no. 581. on 8-8-1969 he filed title suit no. 247 of 1969 for setting aside the compromise decree in t. s. no. 89/63.2. title suit no. 51 of 1969 was filed by the petitioners on 11-4-1969. on 12-4-1969 they filed an application for interim injunction under order 39. rule 1 c.p.c. this.....
Judgment:
ORDER

G.K. Misra, C.J.

1. Facts of the case may be stated in short. Plaintiffs are the petitioners, Padan Das and Laxman Das (opposite party No. 2) were two brothers. Opposite parties nos. 3 and 4 are the sons of Laxman Das, Padan Das was the admitted owner of the suit properties measuring 0.54 acre. Out of this. 0.17 acre is in Khata No. 455 and 0.37 acre in Khata No. 581. Suka is the daughter of Padan Das. On 15th of October 1930, Padan sold the disputed lands to one Sadei Sahu. On 25th of August 1954, Sadei, in his turn, sold the disputed lands to Laxman Das. On 21-5-1963 Suka sold the disputed lands to the plaintiffs. Laxman filed Title Suit No. 89 of 1963 for declaration of title and confirmation of possession against the plaintiffs. On 22nd of August 1963 that suit was compromised. In the compromise decree the title of the plaintiffs was declared and their possession was confirmed. On 27-12-1968 Laxman sold 0.37 acre to Krushna Sahu (opposite party no. 1). Out of 0.37 acre. 0.03 acre was out of Khata No. 455 and 0.34 acre out of Khata No. 581. On 8-8-1969 he filed Title Suit No. 247 of 1969 for setting aside the compromise decree in T. S. No. 89/63.

2. Title Suit No. 51 of 1969 was filed by the petitioners on 11-4-1969. On 12-4-1969 they filed an application for interim Injunction under Order 39. Rule 1 C.P.C. This application was allowed, by the First Munsif. Cuttack, on 7-11-69. The interim injunction was vacated by the Subordinate Judge. Cuttack, on 8th of December, 1970. It is against this order that the civil revision has been filed.

3. Mr. Sinha places strong reliance on a passage in an unreported decision in Civil Revn. No. 35 of 1963 (Orissa) (Baroia Setti v. Dadhibaban Swamy) in contending that where the disputed property is paddy land no interim injunction can be granted. The passage runs thus:

'x x x x x x In the circumstances, there does not appear to be any satisfactory case made out by the plaintiffs that they are in possession so as to be entitled to the interim relief for injunction. This being a paddy field also there will be no irreparable loss. It is open to the plaintiffs to claim damages if in point of fact they have been dispossessed x x x.X X X X'

4. The underlined sentence is to be construed in the context of the finding just preceding that the plaintiffs in that case failed to establish that they were in possession of the paddy land. The underlined sentence was given by way of an additional reason. I am told at the Bar that this judgment has been frequently used in lower courts in support of the view that no injunction can be granted in respect of paddy lands. The learned Subordinate Judge has suffered from that misconception. It is therefore necessary to clarify the legal position pertaining to issue of temporary injunction under Order 39, Rule 1, C.P.C.

5. Order 39, Rule 1. C.P.C. with the Orissa amendment runs thus:

'Rule 1. Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens or intends, to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit until the disposal of the suit or until further orders.

Provided that no such temporary injunction shall be granted if it would contravene the provisions of Section 56 of the Specific Relief Act (Act 1 of 1877).

Provided further that an injunction to restrain a sale, or confirmation of a sale, or to restrain delivery of possession, shall not be granted except in a case where the applicant cannot lawfully prefer, and could not lawfully have preferred, a claim to the property, or objection to the sale, or to the attachment preceding it, before the Court executing the decree.'

6. The scope of this rule may now be examined. It lays down the circumstances under which a temporary injunction can be granted. It needs hardly any emphasis that unless those circumstances are fulfilled the Court has no jurisdiction to grant a temporary injunction. It is also well-settled that even if all the circumstances exist, the Court is not bound to grant temporary injunction as a discretion has been conferred upon the Court by use of the word 'may' which in the context means 'may' and not 'shall'.

7. This discretion, however, is a judicial one and must be exercised on sound principles and not arbitrarily.

8. The principles on which the exercise of discretion rests are well-settled. They are-

(i) In the facts and circumstances of each individual case there must exist a strong probability that the petitioner has an ultimate chance of success in the suit. This concept has been otherwise expressed by saying that there must be a prima facie case.

(ii) As the injunction is granted during the pendency of the suit the Court will interfere to protect the plaintiff from injuries which are irreparable. The expression 'irreparable injury' means that it must be material one which cannot be adequately compensated for in damages. The injury need not be actual but may be apprehended.

(iii) The Court is to balance and weigh the mischief or inconvenience to either side before issuing or withholding the injunction. This principle is otherwise expressed by saying that the Court is to look to the balance of convenience.

9. As the language of the rule indicates the property in dispute is not confined to any particular kind of property. The word 'any' qualifying 'property' is wide enough to include paddy lands. It is therefore not correct to entertain an argument that Order 39, Rule 1 would not cover a relief for injunction relating to paddy lands. The learned Subordinate Judge's view is not supportable either by the aforesaid unreported decision or on elementary analysis of Order 39, Rule 1, C.P.C.

10. Coming to the facts of this case, the events have already been narrated in chronological order. The title of the plaintiffs is based on a registered sale deed dated 21-5-1963. Its validity was questioned in T. S. No. 89 of 1963 and in a compromise decree the title and possession of the plaintiffs were recognised on 22-8-1963 by the transferor of opposite party No. 1. More than five years after on 27-12-68 Laxman Das sold 0.37 acre to opposite party no. 1 and the compromise decree has been assailed in T. S. No. 247 of 1969 after the filing of the present suit. Subject to what Would be decided in the suit itself and until the compromise decree is set aside the plaintiffs have a prima facie title on the basis of their purchase and the compromise decree whereby the transferor of opposite party No. 1 acknowledged the title and possession of the plaintiffs. The plaintiffs have therefore a fair chance of success in the suit itself and the probability of their being entitled to the relief asked for is in their favour. The first condition is fully satisfied.

11. Laxman Das having been divested of his title if any by the compromise decree took law into his own hands and attempted to introduce opposite party No. 1 into the disputed land. Whatever might have been the position earlier, at least after the compromise decree the possession of the plaintiffs was acknowledged. While going to grow crops on the land, the plaintiffs have been threatened with dispossession. Doubtless, the injury can be adequately compensated for in damages but this fact should not largely weigh in the peculiar facts of this case whereby an interloper wants to dispossess the ostensible owner by taking law into his own hands. The second condition should therefore not be rigorously insisted upon in the facts and circumstances of this case.

12. The balance of convenience is in favour of the plaintiffs. They were in earlier possession and there is no justification why they should not be allowed to continue in possession.

13. Corning to the question of possession, none of the parties has adduced any oral evidence. But the broad probabilities are in favour of the plaintiffs. From a chart supplied jointly by the learned Advocates it is clear that for the lands covered by Khatas Nos. 581 and 455 plaintiffs are paying rent as per rent receipts dated 19-1-1965, 16-1-66, 19-1-67 and 31-1-1968. Opposite party No. 1 has filed rent receipts for the self-same Khatas. Those rent receipts are dated 1-4-1958 and 13-1-1969. The rent receipts dated 1-4-1958 in favour of the transferor of opposite party No. 1 are not of any assistance. They are much earlier and prior to the passing of the compromise decree. The only other rent receipts are dated 13-1-1969 which are just about a month after the purchase made by opposite party No. 1.

14. Rent receipts by themselves do not constitute evidence of actual possession but they are not irrelevant or inadmissible as evidence of possession. They can add weight however slender, to other evidence of possession.

15. The rent receipts produced on either side taken as a whole have lent support to the case of the plaintiffs that subsequent to the compromise decree they have been asserting their right of tenancy on payment of rent and opposite party No. 1 came into the field in December 1968 by making a purchase from a person having no title and attempted to assert some rights by payment of rent in January 1969. There is a presumption in favour of the plaintiffs that their possession recognised in the compromise decree continued to be so and no evidence has been given that it was not so exercised subsequent to the compromise decree. This being the broad probability the balance of convenience is in favour of granting interim injunction to the plaintiffs. An apparently 'rightful owner should be protected from interference with his possession by a rank trespasser. The third condition is therefore fulfilled in favour of the plaintiffs.

16. On the aforesaid analysis, this is a fit case in which temporary injunction should be issued against the opposite parties. The learned Munsif took the correct view and rightly distinguished the unreported decision. The learned Subordinate Judge fell into, an error in construing the unreported decision as supporting the wide proposition that in no circumstance a temporary injunction can be granted to protect paddy lands from interference of trespassers. It need hardly be stated that the ultimate conclusion would vary according to the facts and circumstances of each case.

17. It may, however, be made clear that the views expressed by me need not influence the subordinate courts during trial.

18. In the result, the judgment of the learned Subordinate Judge is set aside and that of the learned Munsif is restored. The civil revision is allowed with costs. Hearing fee of Rs. 50/-.

19. Let the suit be disposed of within four months from today with intimation to this Court.


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