Devendra Kumar Upadhyaya, J. - (1.) Heard Sri R.P. Shukla, learned counsel for the petitioner and Sri Rajeev Narayan Pandey, learned counsel who has put in appearance on respondent no.2 by filing his Vakalatnama.
(2.) Under challenge in these proceedings initiated by the petitioner under Section 227 of the Constitution of India is the order dated 14.01.2016 passed by the appellate court whereby the appeal preferred by the plaintiff-respondent no. 2 against the order passed by the learned trial court dated 20.01.2015 rejecting the application moved for grant of interim injunction under Order 39, Rule 1 & 2, CPC, has been allowed.
(3.) Submission of learned counsel for the petitioner is that learned trial court on consideration of the relevant material available on record had rightly rejected the application moved for grant of interim injunction giving a finding that the plaintiff-respondent no. 2 had completely failed to establish a prima facie case, whereas learned appellate court has reversed the said findings ignoring the material available on record, especially the fact relating to pendency of suit instituted by the petitioner seeking cancellation of the sale deed dated 31.10.2013 allegedly executed by one Sri Ram in favour of the plaintiff-respondent no. 2. Learned trial court has recorded a finding that merely because of the alleged sale deed dated 31.10.2013 the plaintiff cannot be said to be in possession over the property in question for the reason that in an earlier suit, at the appellate stage Sri Ram who is said to have executed sale deed in favour of the plaintiff was not found in possession over the property. Learned trial court has also observed while rejecting the application for grant of interim injunction that the defendant-petitioner, Smt Sushila is the wife of Sri Ram, who is mentally retarded and this couple has a son as well, hence the balance of convenience lies in not granting interim injunction in favour of the plaintiff. The factum of the petitioner being legally wedded wife of Sri Ram is, however, denied by learned counsel representing the respondent no. 2.;