Satish K. Agnihotri, J. - (1.)CHALLENGE, in this petition is to the order dated 06.11.2008 (Annexure P/1) passed in Misc. Civil Appeal No. 05/2008 by the District Judge, Kabirdham (Kawardha) whereby and where under the order dated 01.08.2008 (Annexure P/12) passed by the Civil Judge Class II, Pandariya, in Civil Suit No. 04-A/2008, rejecting the application filed under Order 39 Rule 1 and 2 of the Code of Civil Procedure 1908 (for short 'the CPC') was set aside and the District Judge granted interim injunction in favour of the respondents/plaintiffs.
(2.)THE brief facts, in nutshell, as projected by the petitioners/defendants are that the respondents/plaintiffs filed a suit for permanent injunction along with an application under Order 39 Rule 1 and 2 of the CPC seeking temporary injunction against the petitioners/defendants from entering or interfering with the possession of the respondents/plaintiffs of the plaint schedule land. The Civil Judge Class II, Pandariya, Kawardha, after having heard both the parties and considered all the facts, by order dated 01.08.2008, dismissed the application of the respondents/plaintiffs holding that the respondents/plaintiffs have failed to establish a prima facie case, balance of convenience and irreparable loss in their favour. The learned Civil Judge, after considering all the affidavits and documentary evidences, observed that the plaint schedule land is in joint possession of the plaintiffs and the defendant and without considering the case at length, it is difficult to determine the possession of each of the parties so as to grant interim injunction. Earlier, the petitioners/defendants have objected to the respondent/plaintiffs for mutation of the land in their possession. In view of that, it was held that it was not a case for interim injunction.
Being aggrieved, the respondents/plaintiffs filed an appeal before the Additional District Judge, Kabirdham (Kawardha) being Miscellaneous Civil Appeal No. 05/2008. The learned Judge, considering all the aspects held that the respondents/plaintiffs have stated about the partition of the land and the respondents/plaintiffs have produced a document also in support of their statement. The petitioners/defendants have not produced any document in rebuttal of the statement and documents produced by the respondents/plaintiffs. In that view of the matter, the respondents/plaintiffs have prima facie established their possession and as such, the respondents/ plaintiffs have proved that the balance of convenience is in their favour and they would suffer irreparable loss. Accordingly, the order dated 01.08.2008 passed by the Civil Judge, Class II was set aside and the application under Order 39 Rule 1 and 2 filed by the respondents/plaintiffs was allowed by order dated 06.11.2008 (Annexure P/1). Thus, this petition.

(3.)SHRI Sanjay S. Agrawal, learned counsel appearing for the petitioners/ defendants submit that the order dated 01.08.2008 (Annexure P/12) passed by the Civil Judge, Class II was just and proper as the main dispute between the parties was with regard to partition of the plaint schedule land. The respondents/plaintiffs have failed to establish prima facie case and balance of convenience and irreparable loss in their favour. The finding of the appellate court with regard to partition that partition had taken place is without a plea taken by the plaintiffs. On perusal of the pleadings, it appears that the plaintiffs have not taken plea of partition. Panch Faisla has completely been ignored. Thus, reversal of the findings of the trial court by the first appellate court is without any basis as the learned judge has failed to consider Panch Faisla and the averments in the plaint. It is a Joint Hindu Family property and no injunction could be granted against the co-parceners. Per contra, Shri Prafull Bharat, learned counsel appearing for the respondents/plaintiffs would submit that the respondents/plaintiffs are holding the suit property as absolute owner and are in settled possession. The revenue records also indicate that the respondents/plaintiffs are the Bhumi Swami of the land in dispute and on the other hand, the petitioners/ defendants have failed to rebut the same by filing any document, as held by learned District Judge. Learned counsel further submitted that for considering the application for grant of injunction, a prima facie case, balance of convenience and irreparable loss of seeker of the interim injunction may be considered. The interim injunction is even otherwise a discretionary jurisdiction of the court.
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