MOTI SINGH Vs. KISTURA

JUDGEMENT

(1.) THESE two revisions petitions have been filed both by the plaintiffs and the defendant against an order of the appellate order of the learned Additional Commissioner, Jodhpur dated 7. 9. 59. Kastura and others plaintiffs filed a suit in the court of the Assistant Collector Didwana for a permanent injunction under sec. 188 of the Rajasthan Tenancy Act with the allegation that Moti Singh defendant had for sometime been threatening to interfere with the peaceful possession of the suit land over which the plaintiffs had been in cultivatory possession as tenant since Svt. 2004 onwards. The suit was denied by the defendant, who stated that the land was in his cultivatory possession and recorded as such in the Khasra Girdawaris from Svt. 2012 to 2015. In support of their claim the plaintiffs produced copies of Girdawari slips and rent receipts said to have been given to them by the respondent; whereas the defendant filed copies of the Khasra Girdawaris wherein his name was entered as a person in cultivation of the land in dispute. Before the suit could proceed further the plaintiffs moved an application presumably under sec. 212 of the Rajasthan Tenancy Act for the issue of a temporary injunction restraining the defendant from interfering with their possession pending disposal of the main suit. This was followed by an affidavit as well. The defendant controverted the allegations in the said affidavit. At first the trial court issued an ad interim temporary injunction, but having heard both the parties and looked into the documents referred to above, came to the conclusion that the plaintiff had not established to the satisfaction of the court that they had a prima facie case justifying the issue of an ad interim injunction. The earlier order about the issue of an ad interim injunction was, therefore, vacated. Being aggrieved from that order an appeal was filed by the plaintiffs before the Addl. Commissioner, Jodhpur. He also examined the material on record and somehow held, evidently on the basis of entries in Girdawari slips, that there was a prima facie case in favour of the plaintiffs and that the balance of convenience would be to issue an ad interim injunction in order to avoid an irreparable loss to the plaintiffs. The learned lower court further in the operative part of the order, however, directed that to meet the ends of justice it would be better to appoint a court receiver for the disputed land, who will protect the standing crop, tend it, gather it and after auctioning the produce will deposit the amount in the Government treasury for payment to such person who may ultimately win the case. Both the parties have felt aggrieved from this order. The contention of the plaintiffs is that when suit land was found prima facie in their cultivatory possession by the learned lower appellate court, there was no justification to deprive them of their possession by appointment of a receiver and that only a temporary injunction restraining the defendant from interfering with the plaintiffs possession was quite enough. The contention of the defendant is that as the trial court had found that there was no prima facie case in favour of the plaintiffs, the learned lower court exceeded his jurisdiction in taking a different view on the same documentary evidence which was duly examined and correctly appreciated by the trial court. At any rate he also did not support the appointment of a receiver, which in its opinion, would tantamount to dispossess the defendant. The principles which govern the exercise of a discretion conferred under sec. 212 of the Rajasthan Tenancy Act, which in essence corresponds to O. 39, R. 1 C. P. C. , is to the effect that a person who seeks a temporary injunction must satisfy the court as a rule that there is a serious question to be tried in the suit and that on facts before the court, there is a probability of his being entitled to the relief asked for by him, secondly, that the court's interference is necessary to protect him from that species of injury which the court calls irreparable before his legal right can be established on trial, and thirdly, that the comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. The first of the above conditions is generally termed 'a prima facie case'. But this is not by itself sufficient. The applicant should further satisfy the second condition which is termed 'irreparable injury' and also the third condition what is called the principle of 'balance of convenience'. In the present case the applicant must have also to satisfy the court that the property in dispute is in danger of being wasted damaged or alienated by the defendant. A mere allegation of waste etc. is not enough. There must be proved actual or reasonably apprehended danger of such waste or damage before an injunction can be granted. In the present case we are unable to find any of the above conditions or a proof about the existence of any. of the essential ingredients of sec. 212 of the Act. There is a bald affidavit of the applicant that the defendant was threatening to interfere with his possession. This has been controverted by the defendant as well. There is nothing on record beside the documents produced by the parties which stand in their name respectively to assist the court in coming to the conclusion as to whether the defendant was taking or had already taken any steps by means of an overt act to dislodge the plaintiffs. A good deal of argument was addressed about the genuineness or otherwise, admissibility or inadmissibility of the copies of the Khasra Girdawaris and the Girdawari Slips by the parties. We would not like to make any observations on this matter at this stage for the obvious reason that the same are likely to prejudice the claim of the parties, which is yet to be enquired into and adjudicated upon by the lower courts. It has also to be remembered that as a rule a lower appellate court shall not lightly disturb an order refusing or allowing an ad interim injunction in a suit of this nature passed by the trial court unless the same was given without considering the material on record, or that some other important and relevant material was brought to the notice of the lower appellate court which escaped the notice of the trial court. No such thing seems to exist in the present proceedings. The learned lower appellate court had hardly any reason to take a different view in the matter and disagree with the trial court on the point whether there existed a prima facie case or not. The appointment of a receiver is indeed contemplated in Sec. 212, but it can only be done when the property is in medio, i. e. in the possession of no one. The court had to satisfy on the basis of the evidence before it that neither of the contesting parties can be said to be in lawful and undisputed possession of the property and that there is a bonafide dispute as to the right to the present possession of the property. The mere fact that a plaintiff in his plaint makes violent and wholesale charges of malversation against the defendant in possession is no ground for the appointment of a receiver. THESE circumstances also do not exist in the present case. Taking all these facts into consideration we are of the opinion that the trial court was fully justified in rejecting the plaintiff's application for the issue of an ad interim injunction in the present proceedings and that the lower appellate court was palpably wrong in appointing a receiver on the property. The result is that both the revisions shall stand dismissed and the decision given by the trial court shall stand confirmed. .