Pishora Singh vs Shrimati Lajo Bai

Muni Lal Verma, J.—The circumstances giving rise to this revision petition may be briefly stated as under:--

Khalinda Ram was owner of the suit land, which is 506 kanals in area. He died on September 10, 1959 leaving behind his widow Smt. Tulchhi Bai, three sons viz. Bhagwan Dass, Om Parkash and Chettan Dass, and five daughters ; viz., Sarvshrimati Lajo Bai, Bhago Bai, Paso Bai, Bhagwani Bai and Kalo Bai. Therefore, all of them succeeded to the aforesaid land, measuring 506 kanals, as heirs of Khalinda Ram and their shares therein were 1/9 each. On October 15, 1959, Smt. Tulchhi Bai relinquished her share as well as the shares of her five daughters in the aforesaid land in favour of her three sons, viz., Bhagwan Dass, Om Parkash and Chettan Dass. In doing so, she had acted as guardian of her daughters. The relinquishment deed was registered and on its basis mutation No. 1802 was sanctioned on April 27, 1961. In the month of July, 1973, Bhagwan Dass exchanged land measuring 24 kanals 12 marlas comprised in fields No 21, 22 min of Rectangle 2% and fields No. 24, 25 of Rectangle 29 (hereinafter called the land) out of the aforesaid land measuring 506 kanals, left behind by (sic) Ram with the land, equal in area, comprised in fields No. 3/1, 3/2, 4, 5, 7 min, 8 min and 13 mm of Rectangle 21 and field No. 1 of Rectangle 21 belonging to Pishora Singh Smt. Lajo Bai and Smt. Bhagn Bai instituted the suit for declaration that the aforesaid relinquishment deed and the transaction of exchange of land effected by Bhagwan Dass with Pishora Singh were not binding on them. They impeached the validity of the relinquishment deed, executed by Smt. Bhago in favour of her sons, alleging that she had no right to relinquish their shares in land in their (her son) favour. As a consequential relief, they claimed perpetual in junction to restrain Pishora Singh from erecting building on the land. Along with the suit they moved an application under order 39, rules 2 and 3 and section 151, Civil Procedure Code, for ad interim injunction restraining Pishora Singh from raising construction on the land Pishora Singh contested the said application. He pleaded that he had obtained the land by giving canal irrigated laud to Bhagwan Dass in exchange, for installing the factory and had obtained loan from the Haryana Khadi and Gram Board, Chandigarh, for the purpose, and that physical possession of the land had been delivered to him. The trial Court declined the ad-interim injunction prayed for by Smt. Bnago and Smt. Lajo They carried appeal and the learned Additional Judge, Hissar, granted the ad-interim injunction restraining him from raising construction on the land. Therefore Pishora Singh has come to this Court in revision.

The facts that Khalinda Ram had died leaving behind land measuring 506 Kanals, that Bhagwan Dass and two others are his sons and Smt. Tulchhi Bai is his widow, and Smt. Lajo Bai and Suit. Bhago Bai are his daughters and they are his heirs, are not disputed.

It, thus, means that there were nine heirs of Khalinda Ram, who had succeeded to the land measuring 506 kanals and the share of Bhagwan Dass therein even if the relinquishment executed by Smt. Tulchhi Bai on her behalf or on behalf of her daughters in his favour and in favour of his two brothers is ignored, was 1/9. The area of land of his 1/9 share would be 56 Kanals 4 Marlas. Therefore, it cannot be gainsaid that the land, which had been exchanged by him with Pishora Singh''s land, is less than his 1/9 share in the land measuring 506 kanals.

The principles governing the grant of ad interim injunction are well settled and these are (a) that the plaintiff has a prima facie case, (b) that, the balance of convenience is in his favour, and that (c) he would suffer an irreparable injury if his prayer for temporary injunction is disavowed. "Irreparable injury" would mean the one which cannot be compensated by money. The grant of an ad interim injunction is within the discretion of the trial Court. The said discretion has, however, to be exercised in accordance with reason and on sound judicial principles. The appellate Court would always be slow in upsetting the decision of the trial Court in the matter of grant or non grant of ad interim injunction. Grant of ad interim injunction is a very serious matter since it restrains the opposite party from exercising his right. Therefore, it is the duty of the Court while considering the grant of ad-interim injunction to see whether its interference is necessary to protect the party applying for it from the particular kind of injury which is said to be irreparable. It is further necessary to see what would be comparative mischief and inconvenience resulting from the refusal of such injunction to the either side or in the event of it being granted. It is only after careful comparison between the convenience of two sides that the Court can arrive at a judicial verdict warranting the grant or non-grant of ad interim injunction. Before ad interim injunction is granted in favour of a party, the Court should be satisfied that there is real apprehension of his suffering an injury if the same is declined to him. The lawful exercise of a right vesting in a person cannot be said to be an injury and, as such the same cannot furnish a ground for granting an injunction restraining such person from exercising it

As indicated above, Bhagwan Dass was admittedly a co-owner in the land measuring 506 kanals and the area falling to his share therein was 56 kanals 4 marlas. So, he had given the land which is less than half of his share in the aforesaid land measuring 506 kanals, to Pishora Singh in exchange of an equal area of land taken by him from Pishora Singh. It was alleged that he was in exclusive possession of the land and he had delivered its possession to Pishora Singh. Pishora Singh had come into possession of the land after the exchange of lands because it is definite that he has raised construction of the factory upto the plinth level. It has been observed in Tek Singh v. Jaswant Singh 1971 PLJ 656, that that a co-sharer in exclusive possession of the site to the exclusion of other co-sharers has every right to transfer that site to a third person who would acquire a valid title thereto, subject, however, to the right of the other co-sharers to have their respective shares assured to them on a partition. It is, thus, clear that Pishora Singh had acquired title in the land on account of the exchange of the land, referred to above, and it was in exercise of his rights that he was constructing factory on it. Therefore, it cannot be said that he was causing any injury or that the plaintiff respondents could have any reasonable apprehension of any injury to their rights. Their rights are protected for the obvious reason that land, which had been given to Pishora Singh petitioner by Bhagwan Dass, is Jess than the area owned by him in the land measuring 506 kanals. On a partition, if and when claimed by the plaintiff-respondents, the land would be adjusted to the share of Bhagwan Dass. Therefore raising of the construction of factory by Pishora Singh on the land would not cause any injury to the plaintiff respondents, much-less the one which would not be compensated by payment of money. Apart from all this, Pishora Singh has made statement today that in case the land would fall to the shares of plaintiff-respondents on partition, he will surrender its possession without claiming any costs from them. Pishora Singh had obtained loan of Rs. 40,000/- from the Haryana Khadi and Gram Board, Chandigarh. He had stored some building material on the land and he had raised construction of the factory upto plinth level. So, in the circumstances if he is restrained from constructing the factory, it would cause inconvenience to him and would further cause loss, which may not be valued in money, whereas the plaintiff respondents would not suffer any injury because, as indicated above, the land will be adjusted to the share of Bhagwan Cass on partition, if claimed by them. There is no allegation that Bhagwan Dass had alienated or transferred any other land out of his share. The lower Appellate Court did not consider these matters and did no deal with the reason given by the trial Court that the balance of convenience did not favour the grant of ad interim injunction, because Pishora Singh had obtained the loan of Rs. 40,000/- for construction of the Factory. The lower Appellate Court ignored the principle that it should always be slow in upsetting the decision of the trial Court in the matter of grant or non-grant of ad interim injunctions. Therefore, its approach was wrong and contrary to the well established principles governing the grant of ad interim injunctions As such, the lower Appellate Court has in granting the ad interim injunction, acted in exercise of its jurisdiction with material irregularity and the provisions contained in clause (c) of section 115, Civil Procedure Code, are attracted.

Relying on AIR 1937 288 (Lahore) Shri Y.P. Gandhi, Learned Counsel for the plaintiff-respondents, argued that Bhagwan Dass could not alienate the land and Pishora Singh petitioner could not raise construction on it. The facts of AIR 1937 288 (Lahore) were different. In that case, the defendants enclosed an area which was 3 4th of the joint plot, while their shire in it was 3/48. So, they had enclosed 1/48 area of the joint plot in excess of their share for erecting the machinery. Therefore, the plaintiffs, who were co-sharers and owned 13/48 share in the joint plot, had brought suit for perpetual injunction restraining the defendants from constructing any building on it. Since the defendants were out to build on a portion of joint plot, which comprised an area larger than their share therein, ad interim injunction restraining them to raise the construction was granted. In the case in hand, the area of the land given by Bhagwan Dass to Pishora Singh in exchange, as indicated (sic) even less than one-half of his share therein. Further, he had obtained equal area of land from Pishora Singh in exchange. So, as a matter of fact there had been no decree even in the area of the land failing to the share of AIR 1937 288 (Lahore) , relied upon by the Learned Counsel fur the plaintiff-respondents, does not render assistance to them.

Relying on The The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, , Bhan Singh v. Kanwaljit Singh AIR 1969 Del 349 and Tara Chand and others v. Satya Wati and others (1968) 70 PLR (sic), Shri V.P. Gandhi, Learned Counsel for the plaintiff-respondents argued that this Court would not correct errors of fact or law and would not interfere with the order of the lower Appellate Court even if a is said to be wrong. There can be no quarrel with the proposition of law laid down in the aforesaid judgments. But, as discussed in para 6 above, the Appellate Court has acted in disregard of the principle that it should have been slow in upsetting the decision of the trial Court by which the ad interim injunction to the plaintiff-respondents had been declined and it cannot be said that it (the Appellate Court) had exercised the discretion in accordance with reason or on sound recognised judicial principles in granting the ad interim injunction. It is for these reasons that the order of the Appellate Court suffers from material irregularity in the exercise of jurisdiction and therefore, it cannot be upheld.

Consequently, I allow this revision petition and set aside the order of the lower Appellate Court. So the application moved by the plaintiff-respondents for ad interim Injunction stands dismissed. In the circumstances of the case, I leave the parties to bear their own costs.

Let there he any misunderstanding, I make it clear that whatever has been said above is limited for the disposal of this revision petition and wilt not be taken as expression of my views on the merits of the suit.