PURAN RAMCHANDRA PANJABI Vs. KALABAI AND OTHER

JUDGEMENT

(1.) This revision application under Sec. 115 of the Code of Civil Procedure has been filed by the applicant challenging the legality and correctness of the order passed by the Additional District Judge, Buldana, on 9-5-1991, whereby he allowed Misc. Civil Appeal No. 34 of 1991 (Smt. Kalabai Vs. Puran) , setting aside the order passed by the Civil Judge, Senior Division, Buldana, on 2-5-1991, and restrained the defendant No. 1 from carrying out any construction over the suit plot till the suit is finally decided.

(2.) Brief facts leading to the present controversy are that the non-applicants (hereinafter referred to as the plaintiffs) filed the suit for declaration and perpetual injunction against the applicant (hereinafter referred to as the defendant) in the Court of the Civil Judge, Senior Division, Buldana. Along with the plaint, the plaintiff also moved an application for grant of temporary injunction under Order XXXIX rules 1 and 2 of the Code of Civil Procedure. It was averred in the said application that on 17-3-1991 the defendant No. 1 marked the plot in question by lime showing his intention of raising construction over the plot in question. The plaintiffs averred that the said suit plot was in their possession for the last 25 years and if the construction is allowed to be raised, not only they would be dispossessed but they would also suffer irreparable loss, and the balance of convenience was also in favour of restraining the defendant from raising the construction on the plot in question.

(3.) It appears that on 19-3-1991 ad interim temporary injunction was granted in favour of the plaintiffs, restraining the defendant from raising the construction over the plot in question. The plaintiffs were directed to serve the defendants within three days, but it appears that order was not complied with by the plaintiffs. Be that as it may, finally the application for grant of temporary injunction was heard by the Civil Judge, Senior Division, Buldana, in presence of the defendants. The defence set up by defendant No. 1 was that the plaintiffs are not in actual physical possession of the suit land. It was further averred by defendant No. 1 that he was put in possession of the suit plot on 24-4-1990 by the document (Kabja Pawati) (Exh. 33/6-D) on behalf of deceased Ramchandra and since that date he is in actual physical possession and a lease deed is also in favour of the defendant No. 1.