- (1.) S. R. Singh, J. Petition in hand is directed against the appellate order dated 2. 8. 95 passed by Civil Judge, Ballia in Misc. Appeal No. 142 of 1995 which was preferred against the order dated 15. 7. 95 of Munsif (West), Ballia rejecting the application for temporary injunction filed by the plaintiff in Suit No. 483 of 1995 Tehsildar v. Mahmood.
(2.) A brief resume of the necessary facts is that the plaintiff-respondent filed a suit for injunction restraining the defendant-petitioner from making any construction over the suit-land. The plaintiff- respondent claimed that the land was jointly owned by the plaintiff and defendant and therefore, the defendant had no right to make any construction over any specific portion of the suit-land. Along with the plaint, an application for injunction was also moved. The prayer for ad-interim injunction was resisted by the petitioner on the ground that the plaintiff was not a co- sharer of the land in suit. It was also urged that the defendant- petitioner had already spent an approximate sum of Rs. 50,000 over the construction raised on the land to a large extent. The learned Munsif, upon a consideration of the facts and circumstances of the case, held that the land in dispute was the joint property of both the parties. In the ultimate analysis, however, the application for ad-interim relief culminated in being rejected on the premise that the suit was not one for partition but for injunction and since the constructions had already been raised in extenso, the defendant would suffer irreparable loss in the event of the injunction being granted while the plaintiff would suffer no injury if the relief of injunction were to be refused. The plaintiff took the matter in appeal before the learned Civil Judge, Ballia who titled the scale of justice in favour of the plaintiff. Having heard Sri R. N. Singh, for the petitioner and Sri S. N. Srivastava, for the respondent, I am pursuaded to the view that the impugned order cannot be sustained.
(3.) IN Chhedi Lal v. Chhote Lal, AIR 1951 All 199, a Full Bench of this Court has held "that the question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer whose right in respect of joint land has been invaded by the other co-sharers either b exclusively appropriating and cultivating land or by raising constructions thereon. " The Full Bench went on to hold that "while therefore, a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case," According to the Full Bench the relief for injunction may be granted or withheld by the Court according as the circumstances established in the case justify. The grant of injunction under Order XXXIX, Rules 1 and 2, C. P. C. is certainly a discretionary power in equity jurisdiction. The Court in the exercise of its discretion will be guided by considerations of justice, equity and good conscience. It was, therefore, incumbent upon the appellate court before reversing the order passed by the trial Court to address itself to the question as to whether the trial Court had in any manner misdirected itself on the question of grant of injunction. The appellate court can interfere with the discretionary order of the trial Court only if it is found that the trial Court has failed to reckon with the factors relevant to the exercise of discretion.;