KESHO PRASAD SINGH Vs. SRINIBASH PRASAD SINGH

JUDGEMENT

(1.) We are invited in this Rule, by the plaintiff-respondent in an appeal from original decree to grant an injunction upon the defendants-appellants so as to restrain them in the use and enjoyment of the subject-matter of the litigation now in their possession. The circumstances under which the lhile was obtained are not disputed, and may be briefly narrated. The subject- matter of the litigation is known as the Dumraon Raj estate, which was in the possession of Maharani Beni Prasad Koeri up to the time of her death, on or about the 13th December, 1907. Upon her death, the Court of Wards took possession of the estate on behalf of an infant Jung Bahadur Singh, now known as Maharaj Kumar Srinibash Prasad Singh, alleged to have been adopted by the late Maharani and entitled to succeed to the Raj as such adopted son. The plaintiff thereupon commenced this litigation in the Court of the Subordinate Judge for recovery of possession of the estate, on the allegation that he was the reversionary heir lawfully entitled to succeed to the properties upon the death, of the Maharani. The trial lasted for many months, and on the 12th August, 1910, a decree was made in favour of the plaintiff. On the 8th September following, the defendants lodged an appeal in this Court, and obtained a Rule for stay of execution as also an order for an ad-interim stay of proceedings. On the same date, the plaintiff obtained a Rule upon the members of the Board of Revenue, under Section 45 of the Specific Relief Act, to compel them to release the estate in his favour. Both these Rules were discharged on the 2nd March, 1910. The plaintiff thereupon obtained the Rule now under consideration, calling upon the defendants-appellants to show cause why they, as also their agents and servants, should not be restrained from spending any sums whatsoever out of the estate; he also asked for an ad-interim injunction to restrain the defendants from spending any sums except such sums as are necessary for the payment of Government revenue and other public charges and rents due to superior landlords. This prayer, however, was not granted.

(2.) In support of the Rule, it has been argued by learned Counsel, that the defendants- appellants ought not to be allowed to spend the income of the properties in their possession to which the title of the plaintiff has been declared by the Court of first instance, and that, in any event, the defendants ought not to be allowed to spend any sums in excess of what is needed for the payment of Government revenue and other public charges and rents due to superior landlords as also sums needed for the management of the estate. It has been contended in substance that if the defendants are not so restrained, they may spend the whole of the income of the estate, as it is alleged they have done in the past, and that plainly they have no authority to appropriate to their own use monies which belong to the plaintiff. In answer to the Rule it has been argued, that the question of the title of the plaintiff is still in controversy; that in spite of the decision of the original Court, it cannot be maintained that the plaintiff has any fair prospect of success: that, in any event, the plaintiff has other remedies at his disposal : and that, in any view, the plaintiff cannot by an injunction practically compel the defendants to manage the estate at their cost for his benefit. After careful consideration of the arguments which have been addressed to us on both sides, we are of opinion that the application for an injunction ought to be refused.

(3.) It may be conceded that the plaintiff now occupies a, position of some advantage by reason of the decision in his favour by the original Court. If the application for injunction had been made during the pendency of the trial in the Court below, the defendants could undoubtedly have contended that the injunction ought not to be granted until the plaintiff had established, as put by Lord Cottenham in Clayton v. Attorney General (1834) 1 Coop. temp. Cott. 97, that he has a fair prospect of success, or, as observed in other cases Preston v. Luck (1884) 27 Ch. D. 497, 505, Challender v. Royle (1887) 36 Ch. D. 425, 436, and Republic of Peru v. Dreyfus (1888) 38 Ch. D. 348, 362, that he has made out a probable or prima facie case. Let us assume, therefore, that as the plaintiff has made out his title after a protracted trial in the Court of first instance, he has a prima facie claim to the disputed properties. But this by itself is not sufficient to justify the grant of an injunction. It is well settled that, as a general rule where the plaintiff is out of possession and claims possession, the Court will refuse to interfere by grant of injunction against the defendant in possession under a claim of right; but where the threatened injury would be irreparable, an injunction will lie at the instance of a complainant out of possession, though in jurisdiction where a distinction is made between a Court of Law and a Court of Equity, such injunction has been refused even against irreparable injury, if the title has not been established at law and no action to establish it has been brought: Strelley v. Pearson (1880) 15 Ch. D. 113, Harman v. Jones (1841) 1 Cr. & Ph. 299, and Wilson v. Townend (1860) 1 Dr. Sm. 324. In this country, however, we are not embarrassed by the distinction between a Court of Law and a Court of Equity; in any event, in the case before us, the plaintiff has commenced a suit for declaration of his title and has been successful in the original Court.