GOPI NATH KASHYAP Vs. DWARIKA PD KASHYAP

JUDGEMENT

(1.) THIS miscellaneous appeal is directed against the order dated 08.02.2010 passed by the Sub-Ordinate Judge-V, Patna City in Title Suit No. 15 of 2009 by which he has rejected the petition under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure for grant of interim injunction.

(2.) THE plaintiffs are the appellants. THE plaintiffs filed a suit for declaration of right, title and possession of the plaintiffs over suit property as well as cancellation of the sale deed dated 09.09.2008 executed by defendant no. 1 in favour of defendant nos. 2 and 3 as illegal, unauthorized and without consideration, inoperative and void ab initio with a further prayer that if the plaintiffs are found to have been dispossessed of the suit property then the plaintiffs be put in actual physical possession and recovery of possession as well as also pray for ad interim injunction restraining the defendants from selling or transferring the suit land and maintaining status quo.

(3.) ON the respective submissions of the parties on considering the petition under Order XXXIX Rule 1 and 2 of the C.P.C read with Section 151 of the C.P.C and the rejoinder filed by the defendant the trial court rejected the injunction petition on the ground that from perusal the memo no. 1832 by Public Information Officer-cum-Assistant Superintendent of Police filed on behalf of the defendant shows that the Officer-In-Charge of Khajakala in his report found possession of the defendant and on that basis held that from this document it is apparent that defendants are in possession and has got his shops and residence and further on the basis of the sale deed executed by defendant no. 1 in favour of defendant no. 2 and 3 on 09.09.2008, the Patna Municipal Corporation has issued a rent receipt after mutation having been done and hence rejected the petition under Order XXXIX Rule 1 and 2 holding that unless the suit is decided regarding the sale deed the plaintiff has no prima facie case and hence has neither balance of convenience in his favour nor irreparable loss. Hence, this miscellaneous appeal is challenging the order.