MAHADEV BAJRI CO Vs. KESHO DASS

JUDGEMENT

(1.) Although the pre-sent proceedings have been submitted to Court in the nature of second appeal, yet the learned counsel agree that the present proceedings are. in fact, invoking revisional jurisdiction of this Court. The petitioners are M/s. Mahadev Bajri Company and others, and their contentions are that they were defendants in a suit filed by respondents Kesho Dass and Onkar Nath for the relief of permanent injunction relating to a land, in all measuring 2070 kanals 6 marlas, which is stated to be under lease with, the plaintiff-respondents from the proprietors of village Mohtli. Tehsil Nur-pur of the District of Kangra. The plaintiff- respondents asserted that they were in peaceful possession over the land and the lease related to. extraction of bairi. stones and sand etc. from the land, including a right of passage which was conferred upon them exclusively and this passage, they have further protected by setting up a barrier. Ac-cording to plaintiffs, the defendant-petitioners have interfered in their possession and have also intended to remove the barrier because the defendants 1 and 2 have leased out some adjoining land to defendants 3 to 5 for a similar purpose and the passage which is said to exclusively belong to the plaintiffs is being intended to be used by the defendants 3 to 5. Therefore, according tp the plaintiff-respondents, the petitioners should be restrained from removing the barrier and from utilising the passage which is exclusively meant for the plaintiffs.

(2.) The suit was filed before the Senior Sub-Judge. Nurpur. who had first granted an ex parte temporary injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code. He called upon the defendant-petitioners to file their objections which they did. On 6-10-1971, the first Court inspected the site and after making certain observation regarding alternative passage which existed for the plaintiffs, on 8-10-1971 vacated the ex carte injunction order, at the same time ordering the plaintiffs to furnish security to the extent of Rs. 5,000/- for payment of compensation, if any, found due and payable to the defendants. The learned trial Judge found that no prima facie case was made out in favour of the plaintiffs, nor any cause existed for resulting irreparable injury to the defendants. Accord-Ing to him, the balance of convenience was rather against the grant of temporary injunction. In those circumstances, the petition for interim injunction was dismissed and the order of security was made.

(3.) The plaintiffs came in appeal before the learned Additional District Judge of Kangra and he by his order dated 22-11-1971. reversed the findings of the learned Senior Subordinate Judge. The learned Addl. District Judge found a prima facie case in favour of the plaintiffs as in the 'jamabandi' entry of 1965-66 he found the mutation entry in favour of the proprietors of the village and also the entry of a subsequent lease which was granted in favour of the plaintiffs. In the lease document dated 15-1-1971, according to the learned District Judge, the passage was exclusively given to the plaintiffs and they were further given the right to exclude others. Accordingly the learned District Judge, after having found a prima facie case in favour of the plaintiffs, granted the temporary injunction prayed for.