ASHOK KUMAR Vs. PAWAN KUMAR

JUDGEMENT

(1.) Petitioner-Plaintiff has laid this writ petition to challenge impugned order dated 3rd of October, 2015 passed by learned Additional District Judge No. 2, Hanumangarh (for short, learned-appellate Court'), whereby learned appellate Court has reversed order dated 11th of September, 2015 passed by Civil Judge, Pilibanga, District Hanumangarh (for short, 'learned trial Court') granting temporary injunction in favour of petitioner-plaintiff in a suit for partition.

(2.) Bare necessary facts of the case are that petitioner-plaintiff filed a suit for partition of property and perpetual injunction against respondent and some other defendants. It is averred in the plaint that Teluram father of petitioner and other co-owners Sohan Lal and Charandas purchased the suit property by a registered sale-deed dated 17th of February, 1967 and since then the said property is in joint occupation of all the three co-sharers. Alleging overt act on the part of respondent - defendant, the petitioner has averred in the plaint that respondent has made an attempt to grab the entire land just to deprive him from his share in the property and that has necessitated filing of suit for partition as well as permanent injunction. In final relief, the petitioner-plaintiff has claimed 1/6th share in the suit property and a partition by metes and bounds of the entire property. Along with the plaint, application under Order 39 Rules 1 & 2 CPC is also laid by the petitioner. The learned trial Court, after hearing rival parties, considered the matter threadbare and taking into account the fact that property was jointly owned by the ancestors of the rival parties and as it has not been partitioned, it is desirable that its position may not be altered without lawful partition. Finally, the Court has found that there is strong prima facie case in favour of petitioner-plaintiff. The learned trial Court has also considered the other two ingredients necessary for grant of temporary injunction and found that petitioner has been able to prove balance of convenience in his favour and further if temporary injunction is not granted, he will suffer irreparable loss. In that background, while allowing the application for temporary injunction, learned trial Court has passed following order: <JUDIMG>1641328-1</JUDIMG>

(3.) Feeling aggrieved by the order of learned trial Court, respondent-defendant preferred an appeal and the learned appellate Court by the order impugned has reversed the order passed by learned trial Court. The learned appellate Court has examined the findings on prima facie case in an absolutely casual and cursory manner. Interestingly, the appellate Court has also recorded a very unusual finding that respondent has been able to prove prima facie case in his favour. In all no finding is recorded by the appellate Court for reversing the finding of learned trial court on that particular aspect of the matter. As regards other two ingredients i.e. balance of convenience & irreparable loss, learned appellate Court has decided these issues in an absolutely casual and cavalier manner.