Civil Revn. Appln. No.677 of 1979

16th January, 1980.

Petitioner Counsel: R.N. Deshpande, for
Respondent Counsel: M.S. Deshpande, .

Cases Cited:
1977 Mah LJ (SOC) 82 [Para 9]
(1973) 14 Guj LR 812 [Para 13]
AIR 1969 Manipur 29 [Para 8]
1965 Mah LJ (SOC) 70 [Para 13]
AIR 1962 SC 527,1963 All LJ 169,1962 Supp (1) SCR 450 [Para 8]
AIR 1953 Pat 399,1953 BLJR 442 [Para 8]
AIR 1939 Mad 733,(1939) 2 Mad LJ 44 [Para 8]

JUDGMENT

ORDER :-This revision application is filed by the original defendant No.1 against an order passed by the Extra Assistant Judge, Akola allowing the application of the plaintiff (non-applicant) for temporary injunction. The trial Court had rejected the application of the plaintiff for temporary injunction, but in the appeal the order was set aside and the learned Extra Assistant Judge having allowed the same, the original defendant No.1 preferred the present revision application.

2. The defendant No.1 is the adopted son of the plaintiff. Admittedly the plaintiff was the owner of the suit fields and he filed the suit only for perpetual injunction praying that the defendant No.1 should not disturb his possession over the suit fields, which he tried to do a few days prior to the filing of the suit with the help of some persons.

3. The plaintiff filed an application for temporary injunction and an ex parte temporary injunction was granted by the trial Court. When the defendant No.1 put in appearance in response to the show cause notice, he stated that he was the adopted son of the plaintiff by virtue of the registered adoption dated 1-5-1971. The plaintiff was old and infirm and suffered from gangrene and as he was unable to manage the property, the management and cultivation was entrusted to him and he was in actual possession of the same. His name was also entered in the Record of rights after notice to the plaintiff and that his possession for the year 1978-79 is also shown in the crop-statement. He further stated that the plaintiff was disputing the adoption deed at the instance of his nephews and was trying to disturb his possession. He, therefore, prayed for vacation of the order of temporary injunction passed ex parte against him, since he was himself in possession of the property to the exclusion of the plaintiff on the date of the suit.

4. As stated earlier, the trial Court after hearing both the parties vacated the temporary injunction order which was issued earlier, but in appeal the learned Extra Assistant Judge allowed the same and hence this revision application by original defendant No.1.

5. Shri R.N. Deshpande, the learned counsel for the applicant, submitted that prior to the filing of the present suit on 25-6-1979 proceedings under S.145 of the Code of Criminal Procedure were commenced on 20-5-1979 and the learned Sub Divisional Magistrate had passed orders on 3-9-1979 up-holding the possession of the defendant No.1 and directing the plaintiff not to disturb his possession. He further submitted that even after the institution of the suit on 25-6-1979 the plaintiff himself had executed a Kararnama, or an agreement, on 3-7-1979 whereby he requested the defendant No.1 to execute sale deed in respect of 5 acres in favour of each of his two nephews. He submitted that this Kararnama was wrongly read by the learned appellate Judge when the recitals contained an admission of the plaintiff that the defendant no.1 was the full owner in the management of the property.

6. It was further submitted by Shri R.N. Deshpande, that the defendant No.1 had filed an affidavit at Ex.56 of the wife of the plaintiff himself in which she had admitted the fact of possession of the defendant No.1. The other evidence that was relied upon in the Courts below and also relied upon in the revision are the affidavits of Jiwansing, Balwant and Dharmarao (Exts. 43 to 45) stating that they had received amounts from the defendant No.1 for performing the summer operations of this land. Mr. R.N. Deshpande further submitted that even assuming that the defendant No.1 was only in joint possession of the suit fields, as observed by the learned Appellate Court, then a writ of temporary injunction could not be issued against him restraining him from entering upon the suit fields.

7. Mr. M.S. Deshpande, the learned counsel for the non-applicant (plaintiff), on the other hand, submitted that the crop-statements for the years 1976-77 and 1977-78 showed that it was the plaintiff who was in possession of the suit property, though in the year 1978-79 the possession of the defendant No.1 came to be shown. He referred me to one notice dt. 20-5-1979 (Ex.20/1) which was issued by the defendant No.1 to the plaintiff just a month or so before the suit wherein the defendant No.1 had stated that the plaintiff and his wife were not on talking terms and were residing separately, about which he was extremely sorry and he requested both the plaintiff and his wife to come and reside together. He, therefore, submitted that no weight could be attached to the affidavit at Ex.56 of the wife of the plaintiff relied upon by the defendant No.1. He further submitted that the grant or refusal of injunction was a discretionary relief and it should not be lightly interfered with by this Court in its revisional jurisdiction.

8. Mr. M.S. Deshpande relied upon Manickvachakam Chettiar v. Official Receiver, East Tanjore, Nagapatam (AIR 1939 Mad 733) which lays down that if the lower Court wrongly decided the question as to burden of proof it was no ground for interference in

revision. In Mt. Bibi Rafiquan v. Gopi Mohton (AIR 1953 Pat 399) what was observed was that when justice has been done between the parties and no prejudice to their respective claims has occurred, the High Court would not interfere. Further in Naik Brindhavanrai v. Churamani Thapa, (AIR 1969 Manipur 29) it was observed that interference under S.115 of the C.P.C. is not to be made in an order based on appreciation of evidence and lastly in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, (AIR 1962 SC 527) which was relied upon, it was observed that temporary injunction could be granted under inherent jurisdiction by a Court.

9. On the other hand, Mr. R.N. Deshpande referred me to Namdeo v. Digambar, (1977 Mah LJ (SOC) 82) in support of his proposition that the evidence tendered by the parties cannot be ignored and if it is ignored on unsustainable grounds, it would be an error of jurisdiction entitling the High Court to interfere.

10. Now, in the first place, I find that an application for temporary injunction in a suit for perpetual injunction proceeds on an assumption that the plaintiff on the date of the suit and on the date of making of such an application is in actual possession of the property and that his peaceful possession is being threatened. If the plaintiff is not in possession then the suit for perpetual injunction simpliciter in fact would be untenable and if in such a situation if he applies for temporary injunction (not being in possession) and if the Courts were to grant such a relief, there is every possibility that such an order obtained by an ingenious and crafty plaintiff on suppression of true facts is likely to be used not as a shield to preserve and protect his possession, but verily as a warrant of possession against which the Courts issuing an order of injunction must guard themselves.

11. The prima facie case for the plaintiff, therefore, lies in pointing out satisfactory evidence that the possession (and not title) lis with him. Even assuming that on the date of the suit the possession was with the plaintiff, but on the day on which he moves the Court for temporary injunction his possession is lost, then not only the application for temporary injunction (which is founded on the fact that the plaintiff is in actual possession) untenable, but even the suit itself simpliciter for perpetual injunction would be bad.

12. The learned appellate Judge in the instant case tried in vain to address himself to the question of title and to the provisions of S.12(c) of the Hindu Adoptions and Maintenance Act. Even assuming that the defendant No.1 is the adopted son of the plaintiff and did not and could not divest the adoptive father of his title, if it is established that the plaintiff had put him in possession of the management of the property on his behalf, the remedy of the plaintiff lay in filing a proper suit for possession of title and not a bare suit for perpetual injunction. In this view of the matter, the following observations of the lower appellate Court seem wholly irrelevant:

"Thus defendant No.1 being the adopted son, the plaintiff expressed his desire that this defendant should thereafter look after the management of the property of the plaintiff. Does it thereby mean that the plaintiff has surrendered all his interest in his property and exclusively given the entire property in such kind of possession of the defendant No.1 and that no interest of the plaintiff was retained with the plaintiff in the suit property? I do not think that it was such an intention of the parties. It simply means that the plaintiff became old and was not in a position to physically supervise the cultivation of the suit property. Seeing that the defendant No.1 is living with him probably it appeared to him that it would be better if the management is entrusted to defendant No.1. It does not mean that the possession of the plaintiff is lost. Such a possession of the defendant No.1 would not amount to his possession exclusively and separate from the plaintiff only if it is supported with some title."

13. So far as the finding of the Criminal Court in the proceedings under S.145 of the Cr.P.C. is concerned, the learned Extra Assistant Judge again tried in vain to distinguish the case, namely, Visan Narayan Gedam v. Madhukar, (1965 Mah LJ (SOC) 70). In that case the order of the Magistrate holding the defendant to be in possession was passed prior to the filing of the suit. In the instant case the suit was filed on 25-6-1979 and the order in the proceedings under S.145 of the Cr.P.C. came to be passed about 3 months thereafter, that is, on 3-9-1979, which in fact ought to relate to the date when the proceedings under S.145 were commenced, that is, on 20-5-1979. When the order in those proceedings was passed, was in fact not very material. That was at any rate a relevant and material piece of evidence which negatived the prima facie case of the plaintiff that he was in possession of the suit

property. As stated earlier, even if it is shown that after the filing of the suit for perpetual injunction, the plaintiff lost possession during the pendency of the suit, an application for temporary injunction could not be allowed in the teeth of the fact that the plaintiff is not in possession when he made such an application. In fact, as observed in Aher Mesa Hamir v. Charan Shamla Sura (1973) 14 Guj LR 812), when the Magistrate under S.145, Cr.P.C. orders handing over possession that right would come to an end only on passing of a decree or order for eviction in due course of law, but so long as that right exists, no injunction order could be issued, since the order under Section 145, Cr.P.C. protects eviction from the date of the order and that the remedy of the aggrieved party is either to get it cancelled by way of revision or by filing a suit, but a suit only for temporary injunction without claiming relief of possession would be misconceived. The said order passed by the Magistrate under S.145, Cr.P.C. would also be binding on the plaintiff unless it is set aside under Explanation VIII to Section 11 of the C.P.C., as amended.

14. The Kararnama dt. 3-7-1979 executed by the plaintiff in favour of the defendant No.1 after filing of the suit was in fact mis- read by the learned Extra Assistant Judge. The plaintiff in fact by executing the said Kararnama virtually recognised the defendant No.1 as a full owner in actual possession and management of the suit property. This document containing the admission of the plaintiff as regards the fact of possession was duly proved by the defendant No.1 by filing the affidavits of its scribe Sonaji (Ex.40) and of the two attesting witnesses Bhimrao (Exhibit 42) and Ajabrao (Ex.41).

15. The order passed by the Extra Assistant Judge setting aside the order of the trial Court has, therefore, to be set aside since the Assistant Judge without considering the question as to whether the plaintiff was in fact in actual possession of the property or not was influenced more by the fact that he was the holder of the title and that he must be deemed to be in joint possession along With his adopted son as the member of the joint Hindu family, which in fact was never the case made out by the plaintiff in applying for temporary injunction. The order being based upon wrong appreciation of the evidence and the circumstances of the case and on wrong approach to issue in question has to be set aside under S.115 of the C.P.C. on the ground of error of jurisdiction.

16. In the result, the revision application is allowed and the impugned order passed by the learned Extra Assistant Judge is set aside and the order passed by the trial Judge has to be restored. The application of the plaintiff (non-applicant) for temporary injunction stands dismissed. In the circumstances of the case there will be no order as to costs.

Revision Allowed