(1.) THIS miscellaneous appeal is directed against the order dated 18th October, 1993 passed by 3rd Additional District Judge, Arrah in T.A. No. 30 of 1993 whereby the prayer of the appellant before this Court for mandatory injunction as also for maintaining status quo ante was rejected.
(2.) IT was submitted before me by the appellants lawyer that the appellant had filed title suit No. 25 of 1988, seaking declaration of sale -deed executed by Phulan Prasad Verma and his two brothers (O.P. 2nd set), in favour of C.P. 1st set as null and void, as also for seeking declaration that the sale -deed, executed by O.P. 1st set in favour of O.P. 6th set was null and void. It was further the case of the appellant in the aforesaid suit that Plot No. 1866 and 1867 were amalgamated and the appellant was using Plot No. 1866 for his exit and other pruposes; because his residential house was situated on Plot No. 1867. However, the suit was dismissed against which there was an appeal (T.A. No. 30/93) in which the impugned order was passed. From the other statements in the memo of appeal, it transpires that there was a suit filed by Phulan Prasad Verma (T.S. No. 39/94) against O.P. 1st set that no title had passed to the O.P. 1st set, as no consideration money had passed. The appellant was impleaded in that suit as Defendant No. 5. This suit was dismissed on contest on 24th Septemper, 1987. However, it transpires from the averments at Paragraph 4 of the memo of appeal that the sale -deed executed by Phulan Prasad Verma was compulsorily registered at the order of the District Magistrate. It was further averred at Paragraph 6 that there was no specific issue regarding want of title in favour of O.P. 2nd set and so this issue was not decided. But, however, in view of the very fact that the appellant had contested the above suit on the ground of want of title in the Defendant 2nd set conferring no title to the O.P. 1st set was negatived by the decision of aforesaid suit, the appellants contention that the O.P. 2nd set had no title to transfer to O.P. 1st set, is not tenable. So, it is apparent that the appellant had no title over Plot No. 186, His suit for declaration of nullify sale -deed executed by O.P. 2nd set in favour of O.P. 1st set and, in turn, the sale -deed executed by O.P. 1st set in favour of O.P. 6th set was also dismissed against which, of course, appeal was preferred in which the impugned order was passed. The learned appellate Court has opined in the impugned order that the respondents had better prima facie case of title than the appellant. So for as balance of convenience is concerned, the Court held that it was also in favour of respondents. The Court further held that there was no question of any irreparable loss which cannot be ascertained in terms of money. In these circumstances, the impugned order was passed by the lower appellate Court.
(3.) FROM the averments in the memo of appeal, it does not transpire that the appellant was holding title over plot Nos. 1867. So, I do not think the respondents concerned were handicapped in using the land according to their will. As alleged in the injunction petition, it was the case of the appellant that the respondents concerned had demolished the northern wall of the house standing on Plot No. 1867 and they had also set up a cow shed and cattle heads were being kept there. The cowdung used to flow to the house of the appellant. Moreover, ventilation of the appellant was obstructed on account of demolition of northern wall. The drain on the roof of appellants house was also damaged.