HIKMATUNISHA & OTHERS Vs. SUKHAMEN & OTHERS

JUDGEMENT

(1.) In a suit filed by respondent No. 1 to 6/plaintiffs, for declaration that auction sale dated 02.01.1993 and sale certificate dated 13.04.1993 are null and void and the plaintiffs be declared that they are title holder of the suit land and also sought permanent injunction restraining the defendants to interfere with possession of the plaintiffs in the suit land. The plaintiffs also filed an application for temporary injunction under Order 39 Rule 1 and 2 CPC read with Sections 94 and 151 CPC that the plaintiffs ancestor Shri Thibhu Kumhar mortgaged the suit land to the defendant-Bank on 15.03.1976 and obtained loan without authority of law and without consent of the plaintiffs. It is stated that Thibhu died in the year 1983. The defendant-Bank auctioned the suit land on 02.01.1993 to realize the loan amount in favour of defendant No.1 and also issued sale certificate on 13.04.1994 in favour of defendant No.1. It was further pleaded that on the basis of auction sale and sale certificate, neither mutation has been done in favour of defendant No.1 nor possession has been handed over to him and the plaintiffs are in possession of the suit land, therefore the defendants be restrained from interfering with their possession till final disposal of the suit.

(2.) The defendant No.1 filed his reply to the application for temporary injunction denying the averment made therein and pleaded that the plaintiffs ancestor-Thibhu Kumhar had obtained loan from defendant-Bank with consent of the plaintiffs and at the time of obtaining loan the suit land was recorded in the name of Shri Thibhu Kumhar and when he failed to make payment, the suit land was auctioned by the defendant-Bank and sale certificate was issued on 13.03.1994, which is strictly in accordance with law and suit land has duly been recorded in his name by an order of Additional Commissioner and as such, the application for temporary injunction deserves to be rejected.

(3.) The trial court by its order dated 31.10.2015 rejected the application for temporary injunction filed by the respondents/plaintiffs finding no prima facie case and no balance of convenience holding that defendant No.1 has purchased the suit land on auction and sale certificate has already been issued in his favour by the defendant- Bank and also noticed the State amendment in Order 39 Rule 1 CPC which bars grant of temporary injunction against the auction. The trial Court finding that the suit land was auctioned by defendant No.2-Bank in favour of defendant No.1 on 02.01.1993 and the plaintiffs have not furnished any security as required, therefore, the plaintiffs are not entitled for temporary injunction.