CHHITOO HIRAJEE Vs. SAKHARAM UMDU

JUDGEMENT

(1.) THIS revision by the plaintiffs Chhitoo and his sons is against the order dated 16-3-1977, whereby the learned Additional District Judge, mandleshwar, has affirmed the order passed by the trial Court dated 7-12-1976, whereby the learned trial Judge rejected their application for issuance of a temporary injunction against defendant-non-applicants and allowed the application submitted by the defendant-non-applicants for issuance of a temporary injunction against the plaintiff-applicants.

(2.) THE facts material For the decision of this revision are as under: The plaintiff-applicants herein have brought the suit for declaration of their title and for issuance of a permanent injunction in respect of agricultural land situated in village Rawat-Pipliya, Tahsil Barwaha, on the allegations that they are Bhumiswamis in possession of the land in suit and that the defendant-non-applicants threatened to dispossess them. In the suit, the plaintiff-applicants submitted an application for issuance of a temporary injunction against the defendant-non-applicants on the ground that they want to dispossess them (the plaintiffs) by taking the law into their hands and that if interim if junction to protect their possession is not issued, then they will be forcibly dispossessed from the suit land. This application was,opposed by the defendant-non-applicants on the ground that they are in possession of the suit land and that they have been recorded as tenants in possession of the suit land with effect from the year 1963-1964 upto the date of institution of the suit. Accordingly, the plaintiffs are not entitled to the issuance of a temporary injunction. The defendant-non-applicants also submitted an application separately for issuance of a temporary injunction against the plaintiff-applicants on the ground that the plaintiffs are attempting to dispossess them. Therefore, they be restrained from interfering with their possession. The application submitted by the plaintiff-applicants was dismissed by the trial Court and that submitted by the defendant-non-applicants was allowed restraining the plaintiff-applicants herein from interfering with their possession over the land in dispute. Aggrieved by this order the plaintiff-applicants preferred an appeal, which has been dismissed. Aggrieved by this order the plaintiff-applicants have filed this revision.

(3.) IN this revision Shri S. D. Sanghi, learned counsel for the plaintiff-applicants contended that the impugned order has been arrived at in an illegal manner because the presumption of continuity of possession enures in favour of the plaintiff-applicants and the same has not been taken into consideration by the learned Additional District Judge; that the predecessor-in-title of the plaintiffs and thereafter the plaintiffs have been recorded as persons in possession in Column No. 12 in the Khasras of the years 1954 to 1962-63; that omission of the entry in Column No. 12 in the Khasras of subsequent years is attributable to order by the Collector in not showing the persons in possession in Column No. 12; that the question of title being wholly irrelevant for the present purposes, the learned Additional District Judge acted illegally in treating that the plaintiffs have not succeeded in showing prima facie case because their claim regarding title to the land appears to be doubtful; that the admission of the defendant-non-applicants contained in the first information report lodged by them on 23-4-1976 regarding the factum of possession of the suit land being with Sakharam and that contained in their application submitted to the Collector dated 19-5-1976 have been over-looked by the learned additional District Judge. Consequently, the application submitted by the revision applicants has been rejected illegally in exercise of jurisdiction. So far as the application submitted by the defendant-non-applicants is concerned, it was contended by Shri Sanghi that the application is neither tenable under rule (1) or Rule (2) of Order 39, Civil Procedure Code, nor the grant of injunction can be sustained under section 151, Civil Procedure Code.