ACHUTANANDA MISHRA Vs. PRAMILA MISHRA

JUDGEMENT

(1.) THE plaintiff have filed this revision. They have filed O.S. No. 22/98 which is now pending in the Court of the Additional Civil Judge (Junior Division), Basudevpur, for partition with claim Under Section 4 of the Partition Act against defendant No. 1 and for permanent injunction against defendants 2 and 3. It is claimed that though there is no partition in respect of the disputed land, defendants 2 and 3 have purchased a part of the disputed land from defendant No 1. During pendency of the suit, an application under Order 39, Rules 1 and 2, Code of Civil Procedure, was filed against defendants 2 and 3 seeking to restrain them from making any construction on portion of the disputed land purchased by them. Defendants 2 and 3 in their objection stated that they had already started their construction on the portion of land purchased by them and there was no justification for granting any injunction. The trial Court after hearing both the sides found that though there was prima facie case in favour of the plaintiffs, the balance of convenience was in favour of defendants 2 and 3. It was further found that no irreparable loss would be sustained by the plaintiffs in case injunction is refused. Misc. Appeal No. 23/98 having been dismissed by the Additional District Judge, Bhadrak, the present Civil Revision has been filed.

(2.) THE learned counsel appearing for the plaintiff -petitioners submitted that when a prima facie case had been found in favour of the plaintiffs, the Courts below should have granted injunction in the interest of justice.

(3.) THE plaintiffs are also not likely to suffer any irreparable loss as in case the plaintiffs succeed, appropriate direction can always be given by the trial Court for demolition of the structure and allowing the prayer Under Section 4 of the Partition Act, or any other suitable relief. Both the Courts below have adverted to various facts and circumstances and come to conclusion. It cannot be said that the Courts below have acted beyond their jurisdiction or have exercised their jurisdiction with material irregularity. For the aforesaid reasons, I do not find any merit in this Civil Revision. It is made clear that the defendants cannot claim any particular equity merely because injunction is being refused and any construction made shall be subject to result of the suit.