Gurdial Singh and others vs Gurmit Singh and others

B.C. Verma, C.J.

This is defendants'' revision petition against the order granting temporary injunction in favour of plaintiffsrespondents. The trial Court has restrained the defendantspetitioners from alienating the property. That order has become final as there is no challenge to it. The challenge however is to the order of the lower appellate Court whereby the defendantspetitioners have also been restrained from taking forcible possession of the suit land from the plaintiffsrespondents. It may be mentioned that the trial Court has refused this relief to the plaintiffsrespondents. It may also be mentioned that a like application by the defendantpetitioners restraining the plaintiffsrespondents from dispossessing them or interfering with their possession has also been dismissed.

Shri S.K Vij, appeared for the respondents to oppose this revision petition.

I find from the record that the claim in the plaint is only to a share in the property and confirmation of joint possession to that extent. This apart, what I find is that after due appreciation of the evidence, the trial Court refused to grant the prayer to restrain the defendantspetitioners from interfering with the possession of the plaintiffsrespondents. The appellate order does not show as to how and in what manner the trial Court has wrongly applied the principles in passing the discretionary order. While interfering with the discretionary order, the appellate Court must be satisfied that the trial Court has acted on wrong principles in the exercise of its discretion. Where the trial Court rightly appreciates the facts and applies to those facts the true principles, that is a sound exercise of judicial discretion. The lower appellate Court shall not interfere with the exercise of such discretion. After going through the impugned appellate order, I find that the lower appellate Court has not attempted even to demonstrate as to how and in what manner the trial Court has failed to apply those principles. On the other hand, what I find is that the lower appellate Court itself has committed even an error of fact. On the very flimsy reason, it has come to the conclusion that it is the plaintiffs respondents who have been in possession of the property. How their possession has become exclusive has not been demonstrated. We have, on the record, the finding that these were the defendantspetitioners who were in possession of the property. Revenue record also shows the defendantspetitioners'' possession. Under the circumstances, the lower appellate Court was not at all justified in granting interim injunction to the plaintiffsrespondents restraining the defendantspetitioners from interfering with their possession. Consequently, that part of the impugned order has to be set aside.

The revision petition is allowed. That part of the impugned order whereby the defendantspetitioners are restrained from interfering with the possession of the plaintiffsrespondents during the pendency of the suit the is hereby set aside and their application for grant of temporary injunction to that extent stands dismissed.