JUDGMENT D. K. Seth, J.
1. The petitioners had instituted a suit being Original Suit No. 271 of 1997, in the Court of Civil Judge, Junior Division against defendant opposite party No. 3 for injunction. In the said suit an application for temporary injunction was filed for restraining the defendant from making construction in the disputed property. By an order dated 6.3.1998 the learned trial court has rejected the application for injunction. An appeal being Civil Misc. Appeal No. 5 of 1998, was preferred by the petitioners. By an order dated 24.3.1998, the learned Additional District Judge. Maharajganj had dismissed the said appeal and confirmed the order of the learned Civil Judge. Against these two orders, the revision petition under Article 227 of the Constitution has been filed by the petitioners.
2. Mr. Swaraj Prakash. learned counsel for the petitioner contends that both the Courts below on merits had wrongly come to a conclusion that the petitioners were not able to make out a prima facie case for grant of temporary injunction and also failed to consider the question of balance of convenience and inconvenience. According to him the refusal to grant injunction amounts to refusal to exercise his jurisdiction vested on him. While passing the said order, both the Courts below committed gross material Irregularity and illegality resulting into gross injustice. Therefore, the said orders should be set aside and injunction according to him at least to the extent of status quo should be granted.
3. He also relies on the decision in the case of Dalpat Kumar and another v. Prahlad Singh and others, AIR 1993 SC 276, particularly paragraph 5 thereof. According to him on the facts and circumstances of the case, the Court has failed in its duty as has been laid down through the ratio decided in the said case.
4. He has also placed the orders impugned and led me through lines of the impugned orders. I have also perused the order and the materials on records and I have heard learned counsel for the petitioner Shri Swaraj Prakash at length.
5. It is an established principle of law that prima facie case is not to be confused with the prima Jacie title which has to be established on evidence at the trial. Prima facie case is a substantial question raised bona fide that needs investigation for the purpose of grant of injunction. It is only a satisfaction that there is a prima facie case is the only necessity. That a question has been raised which is required to be gone into and such question on the face of it is probable more than what is being raised by the other. It is the finding of the comparative probability. If the action results into irreparable injury to the parties seeking injunction and if there is no other alternative remedy is available, it is a fit case that an injunction should be granted. The Court has to weigh competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo an injunction is to be issued. While granting injunction the Court has to exercise sound Judicial discretion.
6. Now let us examine the above proposition that finds support in the case of Dalpat Kumar (supra) in the background of the present case.
7. It appears from the order dated 6.3.1998 that the trial Court has come to the question of prima facie case on the basis of material placed before it. For the purpose of arriving at a finding of prima facie case he considered, the case made out in the plaint and the application for injunction along with counter-affidavit that was filed by the defendants as well as the relevant documents. The trial court had found that the plot No. 299 which was subsequently renumbered as 172 consisted of 48 decimals of residential plot as is appearing from the documents 51Ga, 52Ga and 53Ga respectively, Out of this 48 decimals in paper No, 50Ga 13 decimals of plot No. 299 was shown to have been purchased by the father of the plaintiff whereas according to paper No. 38 Ga20 decimals of said plot No. 299 was shown to have been purchased by the father of the defendants. Thus the trial court has come to a finding that the plaintiff and the defendants have 13 and 22 decimals respectively from plot No. 299. The description of boundaries were available in paper 30Ga which are tallying with each other. On these basis, he has come to a prima facie finding that the plaintiff has not been able to make out a prima facie case that the defendants are making construction in 13 decimals belonging to the plaintiff. Then again the defendants had given the description and boundary of their land which the plaintiff did not give. From the paper 18Ga and the map being paper 19Ga which are part of the report of the Advocate Commissioner shows that the disputed land is encircled by boundary wall which is not admitted by the plaintiffs. On that basis, it has come to a finding prima facie that the plaintiff has not been able to make out a prima facie case. The learned appellate Court similarly proceeded on the same basis in order to find out the real situation for the purpose of coming to a conclusion that a prima facie case has been made out. It is necessary to find out the shape of the land for the purpose of prima Jade case which is not available either from the plaint or from the affidavits in support of the injunction filed by the plaintiffs. Particulars of the description of the property in respect whereof the injunction is being sought (or is expected from the pleadings which is not available from the pleadings submitted by the plaintiff therefore the trial court had observed that the plaintiffs have not disclosed the real fact to establish prima facie case. The appellate court has come to a finding that father of the plaintiffs and defendants are real brothers who had purchased 13 and 22 decimals respectively of land out of the plot No. 299 in the year 1958 and 1962 respectively. The question has been raised in the suit after 30 years which is weighed with the appellate court to consider the prima facie case that it is not believable that the defendant was not in possession of 22 decimal of land which the defendant's father had purchased 30 years ago. The defendants had also pointed out that their land is enclosed by boundary wall on all four sides and he has also given the measurement as 45 meter in length and 45 meter in width but the plaintiffs have not spoken about the boundary wall in the disputed property. The plaintiffs have also not given the measurement or description of the 13 decimal of land. Thus the appellate court has come to a finding that the plaintiffs have not been able to make out a prima facie for the purpose of grant of injunction in respect of the land in dispute.
8. The above discussion clearly shows that both the Courts below have not come to any finding with regard to the title of the property. On the other hand on the basis of the admitted title to the property, it has come to a finding that the plaintiff has not been able to make out a prima facie case on which part of the land the defendants are making construction, whereas the defendants has specifically been able to establish the land in which they are making construction which are bounded by boundary wall and specifically demarcated. At the same time, the Advocate Commission has also reported that the building which have been found is existing within the boundary claimed by the defendant in respect of the land belonging to them. Having regard to the balance of convenience and inconvenience and the prima facie case as has been made out, the Courts below have come to a concurrent finding that no prima facie case has been made out which this Court sitting in revisional Jurisdiction cannot interfere with such finding unless it is shown to be perverse or some material has been overlooked. No such perversity has been shown by the learned counsel for the petitioner from the impugned orders or that any material has been overlooked. After having gone through the Impugned orders and the materials which have been placed before this Court, I am unable to find any reason to arrive at a different conclusion other than those of the trial court and the appellate Court.
9. So far as the decision in the case of Dalpat Kumar and another (supra) is concerned, the discussion as referred to above does not bring the present case within the ambit and scope of the ratio decided in the said case to the extent that the Court has proceeded to decide the prima facie title and not the prima facie case. On the other hand both the Courts below have arrived at a decision that on the basis of the case made out no prima facie case appears to have been made out for the purpose of deciding the injunction application. It has also considered the question of balance of convenience and inconvenience between the parties. Therefore, I do not find that the said ratio in any way helps the contention of Mr. Swaraj Prakash in view of the facts and circumstances as has been discussed above.
10. For all these reasons, I am not inclined to interfere with the impugned orders. The revision petition therefore fails and is accordingly dismissed.