FAKIRASAB Vs. SYEDUSAB

JUDGEMENT

(1.) THIS appeal by the plaintiffs in O. S. No. 108/03 on the file or the Civil Judge (Sr. Dn.) Jamkhandi, is directed against the order passed on I. A. I filed under Order 39 Rule 1 and 2 of CPC for temporary injunction.

(2.) THE essential facts of the case leading up to this appeal with reference to the rank of the parties before the Tribunal are as follows:-The plaintiff has filed the suit for the purpose of his alleged 1/3rdshare in Sy. No. 627/2 measuring 7 acres and 31 guntas as described in the schedule of the plaint contending that the plaintiffs and defendants were one family members, the suit property was their ancestral property and the same has been acquired and the Acquisition Officer has deposited the compensation amount. It is averred that the conferment of occupancy rights in favour of defendants by the Land Tribunal in respect of the schedule property was on behalf of the members of the unit and therefore, the plaintiff is entitled to 1/3rdshare in the compensation that is deposited in LAC No. 305/1997 pertaining to the acquisition of the suit schedule property Sy. No. 627/2 measuring 7 acres and 31 guntas. In the said suit, an application was filed under Order 39 Rule 1 and 2 seeking an order of temporary injunction to restrain defendant Nos. 1 and 2 from receiving compensation amount in Execution Petition No. 226/02 averring that defendants are likely to withdraw the amount that is deposited by the LAO in the said Execution Petition in respect of the acquisition of the schedule property and if the defendant Nos. 1 and 2 are permitted to withdraw the amount, the plaintiff would be put to irreparable loss and an order of temporary injunction be granted. The same was resisted by defendants 1 and 2. The defendants 3 and 4 have been placed ex-parte before the Trial Court. It is contended by defendant Nos. 1 and 2 that the father of the defendant Nos. 1 and 2 that the father of the defendant Nos. 1 and 2 Rajesab was the individual tenant of the land and occupancy rights has been accordingly granted in his name on 13/10/1981 and Form No. 10 also has been issued and thereafter, land has been acquired and it was defendant Nos. 1 and 2 who made application for enhancement of compensation and thereafter, in the appeal filed by the State also they filed cross- appeal and compensation was enhanced and the plaintiff is not having any right or interest in the suit schedule property and therefore, the defendant Nos. 1 and 2 cannot be restrained from withdrawing the amount as the plaintiff would not be put to any loss or hardship if an injunction is not granted.

(3.) THE Trial Court, after considering the material on record, by its order dated 16/04/04 held that the plaintiff has failed to make out a prima facie case for grant of temporary injunction and ultimately ordered that defendant Nos. 1 and 2 shall execute indemnity bond with bank guarantee for Rs. 10,00,000/- undertaking to obey the final verdict in the suit in respect of the compensation amount if they want to withdraw the amount that is in deposit in E. P. No. 226/02. Being aggrieved by the said order, the plaintiff has preferred this appeal. Defendant Nos. 1 and 2 have not preferred any appeal or cross-objections.