NARAIN Vs. MAKHAN

JUDGEMENT

(1.) This special appeal filed by Narain defendant appellant is directed against the order passed by a learned Member of the Board sitting singly exercising revisional jurisdiction and against his order dated 27.7.1964.

(2.) Briefly the facts of the case are that Makhan and Laxminarain plaintiff respondents filed a suit for permanent injunction against Narain restraining him from interfering with the present possession of their suit land and obtained temporary injunction on 13.1.1962. Not satisfied with the grant of temporary injunction, the plaintiff respondents further made an application that as the suit land is likely to be interfered with by the defendant appellants, a receiver should be appointment was confirmed by the first appellate Court as well as by the Revisional Court in the Board of Revenue. It is against this order passed in revision by the learned Member sitting singly that this special appeal has been preferred.

(3.) The counsel for the appellants only contention was that the learned single member in passing the impugned order ignored the important principle of law of granting temporary injunction, appointment of a receiver in suit by failing to examine the prima facie title of the plaintiff respondents. It is clear on record that Gyarsa and Raghunath are the recorded khatedar of the suit land. The plaintiffs have claimed their title to the land as mortgagee. This fact of mortgage has neither been touched by the subordinate Court nor by the Member sitting singly at the time of confirming the order of appointment of a receiver. This order was, therefore, clearly wrong and in violation of the cardinal principle taken into consideration before temporary injunction could be granted or a receiver could be appointed in a suit. The counsel for the respondents reply was that no doubt the suit filed by the plaintiff respondents was for permanent injunction was based on the title as mortgagee in possession of the suit land This was evidenced by the document dated 22.7.1966. The fact of possession has been proved by other evidence such as parcha abpashi etc. This was a sufficient title to enable them to obtain the temporary injunction which they did and also further to seek the relief of appointment of a receiver as the defendant appellants belonging to the majority community were trying to interfere with the lawful possession. He further replied by saying that no ground of special importance was made out by the counsel for the appellant in the special appeal which was against the order passed by the learned single member sitting singly exercising revisional jurisdiction.