THAKUR DASS Vs. STATE OF H.P.

JUDGEMENT

(1.) THE petitioner had filed an application under Order 39 Rule 1 & 2 C.P.C., before the learned trial Court, seeking ad -interim injunction. The learned trial Court, on consideration of the material, on, record, concluded, that, there existed no prima -facie case, in, favour of petitioner/plaintiff, in as much, as, the suit property was recorded under the ownership and possession of the defendant/respondent. It also, concluded that, hence, there existed neither balance of convenience, in, favour of the plaintiff/petitioner, nor, irreparable loss, or, injury would accrue to the plaintiff/petitioner, in case injunction is refused. Undisputedly, ownership of the suit property is recorded in favour of the defendant/respondent. Obviously so and further when the suit property is reflected in the revenue records to be bearing the classification of "Gair Mumkin Sadak" meant for user of the public at large, hence, its purported and contemplated user, in the manner canvassed by the plaintiff/petitioner, would be antithetical or contrary to the rights of ownership in the suit property inhering in and vested in the defendant -respondent/non -applicant. Besides, it would be antithetical to and would impinge upon the rights of the public, to, use it as a "Gair Mumkin Sadak". Furthermore given the fact, that, the demarcation of the suit property was carried out, in, which, it, was detected, and, noticed, that, there was an encroachment, on, the part of plaintiff/petitioner, on the suit property, to the extent, and in a manner, as, noticed in it. Hence, when at this stage, when no material has been placed on record to denounce or frown upon the said demarcation, as such, it enjoys validity. Consequently when adverted, to, hereinabove when the plaintiff/petitioner has no right to use the said property or raise construction thereon, in, any manner contrary to its recorded user, in, the revenue records. As a sequel then, the view taken by the learned trial Court, in, refusing an ad -interim injunction, as prayed for, was a tenable view. Even, the view, as, taken by the first appellate Court is concomitantly to be construable to be, also, a justifiable and tenable view, in as much, as, the plaintiff/petitioner had omitted, to, fulfill the necessary ingredients, to justify the according of relief in his favour, in as, much, as, (i) of there being a prima -facie case,(b) balance of convenience and (c) irreparable loss and injury likely to be accrued to the plaintiff.

(2.) BEFORE parting with, this Court, affirms the view, as, taken by the learned trial Court, as, well, as, by learned first appellate Court. However given the reply, as, filed by the respondents, wherein, it has been mentioned that though the petitioner/plaintiff was directed, to, deposit an amount of Rs. 56,391/ -, as, penalty for his unauthorized occupation, on, the suit property, he has only deposited a sum of Rs. 15,000/ -, therefore it is directed that he shall deposit the entire amount, imposed, as, penalty, so, as, to equip him with a right to use the suit property, as a path. In view of the above, present petition stands disposed of, as also, pending application(s), if any.