Hon'ble Dinesh Gupta,J.
(Delivered by Hon. Dinesh Gupta, J)
1.By means of this appeal M/s. Savy Homes (P) Ltd. the plaintiff-appellant (hereinafter referred to as the appellant) has challenged the order dated 02.02.2011 passed by Additional District Judge, Agra in Original Suit No. 617 of 2010 (M/s. Savy Homes (P) Ltd. Vs. Nikhil Indus Infrastructure Ltd. And others) whereby the application for temporary injunction under Order XXXIX Rules 1 & 2 Code of Civil Procedure moved by the appellant was rejected.
2.The facts giving rise to this appeal are that the appellant filed Original Suit No.617 of 2010 against the defendants-respondents for the relief of permanent injunction restraining them from interfering in peaceful possession of the appellant over the property in suit. Along with the suit the appellant also moved an application under Order XXXIX Rule 1 and 2 Code of Civil Procedure for grant of temporary injunction. The appellant pleaded that:
The Appellant is the owner in possession of the land measuring 2976.07 sq. metres out of khasra nos.360, 398, 437 and 438 situated in Mauza Babarpur, Tehsil and District- Agra by virtue of a registered sale deed dated 04.12.2009 executed by Agra Zila Swatantrata Sangram Sahkari Grih Nirman Samiti Litd. (the Samiti) and possession was also delivered to the appellant; and Intitially one Hakim Singh s/o Chhiddu Singh had 1/6 share in the aforesaid khasras along with other co-sharers and he sold his share to the Samiti on 22.03.1990. There was some dispute regarding stamp duty and ultimately the sale deed was registered in favour of the Samiti on 04.02.2009 which thereafter transferred the land to the appellant.
3.The defendant-respondent no.1 Nikhil Indus Infrastructure Ltd. (hereinafter referred to as respondent no.1) filed the reply to the application for temporary injunction moved by the appellant. In the reply the respondent no.1 denied all the allegations made in the plaint as well as injunction application alleging that-
The appellant has no right, title or interest in the property in suit and is not in possession over the same;
The land over which the appellant has claimed his ownership and possession showing the same in rectangular form comprising of khasra nos. 360, 398, 437 and 438 is incorrect. All these khasras are situated at different places i.e. they are not at one place and are scattered;
The respondent no.1 has purchased some portion of khasra no.437 and 438 and various other khasras from one Nikhil Homes Ltd. and after getting the sale deed in his favour, he raised boundary wall over the property purchased by him and in fact the respondent no.1 is in actual possession over the property; and That the respondent no.1 has also got a map sanctioned from the Agra Development Authority and also started developing a residential colony over the said land.
4.The appellant filed certified copy of khatoni and the sale deed executed by the Samiti in its favour and copy of the sale deed executed by Hakim Singh in favour of the Samiti.
5.The respondent no.1 filed copy of the plan sanctioned by Agra Development Authority and copy of sale deed executed by Nikhil Homes Ltd. in his favour and copies of various sale deeds executed by different persons in favour of Nikhil Homes Ltd.
6.The trial court rejected the application for temporary injunction on the ground that-
The appellant has failed to establish his prima facie case;
Balance of convenience is also not in favour of the appellant; and The appellant will not suffer any irreparable loss in case the injunction is denied.
7.Aggrieved by the aforesaid order, the appellant has preferred this appeal.
8.We have heard counsel for the parties.
9.The counsel for the appellant submits that the trial court has committed serious illegality in recording the finding that the appellant has no prima facie case in his favour. The appellant has proved his ownership as well as possession over the property in suit. The counsel drew our attention to the copy of the sale deed executed by Hakim Singh in favour of the Samiti and also the extract of the khatoni and submitted that one Hakim Singh had 1/6 share of khasra nos.360, 389, 437 and 438 and he transferred his share in favour of the Samiti vide sale deed which was actually registered on 22.03.1990. Some dispute arose with regard to payment of stamp duty and it was registered on 04.09.2009 and thereafter the Samiti transferred this land in favour of the appellant vide sale deed dated 04.12.2009.
10.The counsel further submitted that the trial court has failed to consider that there was a partition amongst Hakim Singh and other co-sharers and the share of Hakim Singh ultimately took a shape of square land which was transferred in favour of the appellant. The only ground taken by the court to disbelieve the appellant is that all the kharas are not at one place and on the contrary they are scattered and situated at different places.
11.The counsel for the respondent no.1 submitted that the appellant has completely failed to prove his prima facise case. In order to establish prima facie case the appellant has to establish his title as well as possession over the disputed land. The trial court has also recorded a categorical finding that the appellant has failed to establish his possession over the property in suit. The finding is based on factual aspect and on the ground that the alleged kharas no.360, 389, 437 and 438 are situated at different places and they are not at one place while the appellant has shown the land in dispute in a rectangular shape at one place. He further submitted that the trial court has unnecessarily criticisd the title of respondent no.1. The respondent no.1 has purchased some land of khasra no.437 and 438 and land of other khasras which are not the subject matter of dispute.
12.We are unable to accept the contention raised by counsel for the appellant.
13.It is the established rule of law that in order to obtain injunction in his favour one has to prove (i) prima facie case in his favour, (ii) balance of convenience and (iii) irreparable loss in case the injunction is not granted. The apex court in Seema Arshad Zaheer v. Municipial Corpn. Of Greater Mumbai (2006) 5 SCC 282 has held that the discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff-
I. Prima facise case as pleaded necessitating plaintiff's rights by issue of a temporary injunction;
II. When the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff;
III. Clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.
The apex court in Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719 has held that the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is a prima facise case in his favour which needs adjudication of the trial. The existence of the prima facise case right and infraction of the enjoyment of his property or the right is a condition for grant of temporary injunction. Satisfaction that there is a prima facise case itself is not sufficient. The court further has to satisfy that non-interference by the court would result in 'irreparable injury' to the party seeking relief and that there is no other remedy available to the party except to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means that the injury must be a material one. The third condition also is that the 'balance of convenience' must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing 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, then an injunction would be issued. Thus, the court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.
14.Now, we have to consider whether the appellant has been able to establish a prima facise case or not. In order to establish prima facise case the appellant has to prove his title over the land in dispute as well as his possession. The appellant tried to establish his title by way of sale deed in his favour executed by the Samiti. The appellant's contention is that Hakim Singh sold his 1/6 share to the Samiti and thereafter the Samiti transferred the same to the appellant. The sale deed executed by Hakim Singh only shows that 1/6 share of khara nos. 360, 389, 437 and 438 are being sold in favour of the Samiti. There was no boundaries given in the sale deed nor the area actually transferred. In the sale deed executed by the Samiti a map has been annexed showing the land in the form of a rectangle along with boundaries. The appellant also alleged his possession over the said land. The boundaries shown in the plaint as well as in the sale deed executed by the Samiti in favour of the appellant are vague and incomplete. The appellant has failed to show how the property which he purchased out of four khasras which are not situated at one place, have become rectangular in shape. The appellant has not been able to explain how the Samiti has executed sale deed in his favour showing the boundaries while the same was not given in the sale deed executed by Hakim Singh in favour of the Samiti. There is no evidence that there has been a partition between Hakim Singh and other co-sharers and in the absence of such partition sale deed of any specific portion of the land cannot be executed and possession over any specific portion of the land cannot be delivered. There is no mention in the sale deed executed by Hakim Singh that possession over any specific portion has been delivered to the Samiti. Thus, the Samiti cannot execute sale deed of a specific portion and cannot deliver possession thereof. In the sale deed executed by the Samiti the portion of the land along with boundary has been transferred which is not explained. How the Samiti can transfer a specific land the boundaries whereof are vague and the land is un-identifiable?
15.The counsel for the appellant tried to raise certain doubts over the title of respondent no.1. In order to establish prima facie case the burden in on the appellant to establish his title and possession over the property in suit. He cannot take advantage of weakness of respondent's title. The trial court has given categorical finding in respect of the appellant's title and possession and concluded that the appellant has failed to establish his prima facie case. In M/s. Ramesh Chandra Jamnadas And Co. Vs. State of Andhra Pradesh 1987 (Supp) SCC 166 the apex court has held that when City Civil Court as well as the High Court concurrently found that the plaintiff was not in khas possession of the premises in question and City Civil Court had refused to grant temporary injunction under Order 39 Rule 1, the High Court erred in granting temporary injunction in exercise of its appellate jurisdiction. Thus, there is no illegality in the findings of the trial court. The appellant has miserably failed to established a prima facie case.
16.The counsel for the appellant submitted that the balance of convenience is in favour of the appellant. He submitted that in case the the injunction is not granted in favour of the appellant, the appellant will have greater loss in comparison to respondent no.1.
17.We are unable to accept this contention also. The respondent no.1 has purchased a land comprising of area of 62376 sq. metres and after getting a plan sanctioned from Agra Development Authority it has started developing a residential colony thereon and in case the injunction is granted in favour of the appellant the development of the land for the purposes of residences of public at large will be affected. On the contrary, the appellant has alleged in the plaint that he had purchased an area of 2977 sq. metres (although it is not clearly shown in the sale deed executed by Hakim Singh in favour of the Samiti) and the finding of the trial court is that he is not in possession thereof. Thus, the balance of convenience is not lying in favour of the appellant.
18. Now it has to be seen whether the appellant will suffer irreparable loss. Before granting injunction the court has to satisfy that non interference by the court would result in irreparable loss to the party seeking relief. In the present case, the trial court has recorded a finding that the appellant will not suffer any irreparable injury in case the injunction is not granted in his favour. This finding of the trial court has been recorded after weighing the competing possibilities or probabilities or likelihood of injury to both the parties. This finding suffers from no illegality or irregularity.
19.Since all the three ingredients for granting temporary injunction are not in favour of the appellant and the order of the trial court refusing to grant temporary injunction suffers from no illegality, we find no justification to interfere with the order of the trial court.
20.Before parting with the case, it is expected that the trial court will take effective steps to ensure expeditious disposal of the suit without being influenced by any observations made herein above.
21.The appeal has no merits. It is accordingly dismissed.
PK November 15, 2011