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Shayak Mohammad and ors. Vs. Iqbal Ahmed - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Appln. No. 192 of 1971
Judge
Reported inAIR1973Raj115; 1972()WLN453
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 1
AppellantShayak Mohammad and ors.
Respondentiqbal Ahmed
Appellant Advocate R.C. Jain and; B.R. Mehta, Advs.
Respondent Advocate M.R. Bhansali, Adv.
Excerpt:
injunction - grant of temporary injunction--conditions for--pipe line on joint-chabutari--held, no irreparable injury--injunction rightly refused.;on the point of irreparable injury the appellate court was the opinion that the pipe line would be removed if the plaintiffs succeed in the suit and the defendant can be made to pay compensation for this removal and no irreparable injury would be caused to them. this finding is based on the material on record. it is settled law that temporary injunction can only be granted if the plaintiff is able to prove not only that he has a prima facie case, but alto that the balance of convenience lies in favour of granting the injunction and that irreparable injury would be caused to him, if it is not granted. - .....court refusing to grant temporary injunction to them to restrain iqbal ahmed from installing a pipe line over a 'chabutari' which they claim to belong to them. the plaintiffs and iqbal ahmed defendant are owners of a portion of a 'haveli. the case of iqbal ahmed is that the 'chabutari' is a joint property.2. the appellate court held that prima facie the plaintiffs were the exclusive owners of the 'chabutari'. this finding cannot be challenged in this revision application. the appellate court also held that the balance of convenience was in favour of not granting the injunction because the result of granting it would be to deprive iqbal ahmed of water. this finding is not based on the material on record. the inspection note of the learned civil judge dated 25-7-1970 goes to show that.....
Judgment:
ORDER

Jagat Narayan, C.J.

1. This is a revision application by the plaintiffs against en appellate order of the Civil Judge, Aimer, dismissing their appeal against the order of the trial Court refusing to grant temporary injunction to them to restrain Iqbal Ahmed from installing a pipe line over a 'chabutari' which they claim to belong to them. The plaintiffs and Iqbal Ahmed defendant are owners of a portion of a 'Haveli. The case of Iqbal Ahmed is that the 'chabutari' is a joint property.

2. The appellate Court held that prima facie the plaintiffs were the exclusive owners of the 'Chabutari'. This finding cannot be challenged in this revision application. The appellate Court also held that the balance of convenience was in favour of not granting the injunction because the result of granting it would be to deprive Iqbal Ahmed of water. This finding is not based on the material on record. The inspection note of the learned Civil Judge dated 25-7-1970 goes to show that a pipe line can be taken by Iqbal Ahmed to his portion of the house through the southern door without trespassing over any part of the immovable property of the plaintiffs. The pipe line from the southern side would be only 44 paces long whereas the pipe line which Iqbal Ahmed proposes to instal through eastern door would be 64 paces long.

3. On the point of irreparable in-jury the appellate Court was of the opinion that the pipe line would be removed if the plaintiffs succeed in the suit and the defendant can be made to pay compensation for this removal and no irreparable injury would be caused to them. This finding is based on the material on record. It is settled law that temporary injunction can only be granted if the plaintiff is able to prove not only that he has a prima facie case, butalso that the balance of convenience lies in favour of granting the injunction and that irreparable injury would be caused to him if it is not granted. After the trial, however, the plaintiffs become entitled to grant of permanent injunction merely on proof of his title to immovable property over which the defendant threatens to commit a trespass.

4. I accordingly hold that the order of the appellate Court refusing temporary injunction is not liable to interference in revision.

5. The revision application is accordingly dismissed. In the circumstances of the case I leave the parties to bear their own costs.


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