DEEPALI BHATTACHARYA Vs. RAMJI

JUDGEMENT

(1.) N. N. Mithal, J.- This is an appeal against an order refusing to grant injunction in favour of the appellant. The facts as are available on record for our purposes may first be stated in a nutshell.

(2.) THE present appeal arises out of a suit filed by the appellant and proforma respondent no. 5 for a declaration and, lor injunction. I he facts on which the aforesaid suit was founded may be briefly stated here as these facts form the very backbone of the appellant's claim One Ishwar Chand was the original owner of the property in suit as well as some other property. He had four sons and there was a partition amongst them on 25-8-1965 in which House No. D-52/62, Laxmikund fell to the share of Suresh Chandra, father of the appellant THE aforesaid Suresh Chandra died after the coming into force of the Hindu Succession Act, 1956. He left behind him his widow, who is proforma respondent no 5, the appellant, respondent no. 3 and respondent no. 4 as bis heirs. THE case of the appellant was that according to the aforesaid pedigree, all the aforesaid four heirs had l/4th share each in the disputed property although the respondent no. 4 illegally purported to transfer the entire house in dispute to respondents 1 and 2 on 4-3-1978. It is alleged that the respondent no. 4 had no legal right to do so and by the sale deed respondents 1 and 2 cannot claim any better title than held by respondent no. 4 i.e. l/4th share in the property. THE house consisted of 5 kacbcha Kothries, open land towards east and north of the Kotharies. Out of them three kotharies were occupied by tenant Suraj Bali while the other two koihries and open land continued to remain in possession of their predecessor-in-title. It is alleged that the appellant and her mother respondent no. 5 had shifted to Kanpur and, therefore, respondent no. 4 alone used to look after the property and the plaintiff had very rare occasions of visiting the bouse. According to her, it was only on 16-2-1989 that she came to know that respondents 1 and 2 are now claiming to be the owners of the house under the sale deed dated 4-3-1978. THE said Deed being invalid, the present suit was filed for the aforesaid reliefs. It appears on the allegations contained in the plaint and other materials before us that respondents I and 2 had filed proceedings under Section 21 for release of the accommodation against the tenant (P. A. Case No. 106 of 1986) which was allowed and the need of the landlord was found to be bonande and genuine. An appeal by the tenant against the said decision was dismissed. When the lan lord initiated proceedings for delivery of possession under Section 23 of U. P. Act 13 of 1972, the appellant filed an objection claiming to be the co-sharer and as such not bound by the order This objection was rejected by the Prescribed Authority on 3-1 -1989. the order was challenged by means of a writ petition and by order dated 12-12-1

(3.) AFTER having heard the learned counsel for the parties, we find that the appellant has not been able to satisfy us that the order passed by the court below was in any way illegal or it suffers from any legal infirmity. Even assuming that the appellant had some share in the disputed property, that alone will not be sufficient to entitle him for the grant of temporary injunction. It is now well established that before any Court should grant an injunction, it must be satisfied about the existence of the three main ingredients i e strong prima facie case in favour of the plaintiff, likelihood of irreparable injury being caused on the refusal of injunction and existence of balance of convenience in favour of the plaintiff. Should any of these ingredients be absent, the Court will not be justified in granting injunction. Even if it is assumed that the appellant on the basis of allegations made by her was entitled to a share in the property, yet it was also necessary for her to establish that there was likelihood of any irreparable injury being caused to her and that balance of convenience lay in her favour. The main consideration in this regard would be whether the plaintiff was actually in possession of the property or not. Admittedly the plaintiff no. 1 is residing at Kanpur while plaintiff no. 2 (respondent no. 5 here) was admittedly a a resident of Allahabad. None of them, therefore, was residing in the property in question. Even if respondents 1 and 2 are delivered possession over the disputed property, no irreparable injury is likely to be caused.