DEVI DAYAL Vs. AJMERO DEVI AND ORS.

JUDGEMENT

(1.) The 9th defendant is the appellant before this Court. A suit for injunction filed by the plaintiff was on a plea that the property belongs to defendant Nos. 1 to 8 and that the 9th defendant is attempting to cut and remove the trees. The defendant Nos. 1 to 8 contended that they were themselves owners and neither the plaintiff nor the 9th defendant was the owner. 9th defendant pleaded that there had been an oral exchange between his father and between defendant Nos. 1 to 8 and the property where the trees exist was orally exchanged and mutation made in favour of the 9th defendant's father. It appears that during the pendency of suit a kananugo was appointed as a Local Commissioner who identified the property in dispute and submitted a report to the effect that me trees in respect of which injunction was sought was situate in a Dol that existed between the plaintiffs land and the defendant's land. The court observed that the trees were in the possession of the plaintiff and that he had title to the same and granted the relief of injunction. The counsel for the 9th defendant who has suffered the decree in both the courts below seek to present the proposition of law that in a suit for permanent injunction to restrain the defendant, before injunction could be granted it has to be shown that the plaintiff was in possession. I take this to be too fundamental a proposition to require further elucidation. The property such as trees grown on land could be shown in possession only by evidence relating to title or the manner of enjoyment of the trees themselves. If the plaintiff was therefore contending that the trees were in his enjoyment and the defendant was attempting to cut and remove the trees, the trial court was justified in looking to the Commissioner's report regarding the location of trees as on in a Doll that was claimed by the plaintiff as being in his possession. The relief of injunction which is issued on the basis of such evidence will lose its value, only if the defendant is able to show that he or his purchaser have been in enjoyment of the trees or they planted the trees. The injunction which is granted by the two courts below is on the basis of oral evidence regarding the assessment of right over the trees which I will take as pure questions of facts that would require no interference in appeal.

(2.) Learned counsel has an argument that the very same plaintiff had earlier filed a suit for injunction and an application for interim injunction had been dismissed on merits. I found that the suit was later withdrawn with liberty to file a fresh suit and the dismissal of the interim application on merits ought to be therefore taken as an issue against the plaintiff to deny to him the relief. An interim injunction under Order 39 Rule 1 and 2 is not a dismissal of suit on merits. The application of the Section 11 C.P.C. relating to res judicator. Dismissal of the application for injunction could have no bearing to a dismissal of the suit on merits and that too, after withdrawal of the earlier suit with liberty to file a fresh suit which was incidentally the instant suit which is the subject of appeal. I do not find any bar against the plaintiff for the relief that he has sought for. I find no substantial question of law for consideration. The second appeal is dismissed.