- (1.) D. K. Seth, J. In a suit for injunction the learned trial Court had granted tem porary injunction, against which appeal was preferred in Misc. Appeal, which was dismissed by an order dated 20-2-1991. It is this order which has been challenged in this petition.
(2.) AT the outset Sri Sankatha Rai, learned Counsel for the petitioner seeks leave of this Court to convert the petition under Article 227 of the Constitution. The leave is granted. Learned Counsel for the petitioner will amend the cause title in course of today. Sri Sankatha Rai, learned Counsel for the petitioners contends that proceed ings under Consolidation of Holdings Act is pending between the parties and admit tedly the parties are in joint possession of the property. Therefore, according to him injunction cannot be maintained against co-owner. He further contends that two kind of injunction have been sought for namely, restraining the defendants from interfering with the peaceful possession of the plaintiff as well as restraining the defendants from making any construction. The question of possession cannot be gone into in this suit in view of pendency of proceeding under Consolidation of Holdings Act, particularly, when no 'dakhalanama' is being shown by the Plaintiff, to assert his- right with regard to his exclusive possession in respect of the property in order to maintain the cause for injunction. Therefore, both the learned courts below had acted wholly illegally and with material irregularity and had ex ceeded in its jurisdiction in granting in junction. Sri Rai further contends that it is a case which falls under Rule 109-A and not under Section 28 of the Act, as has been held by the Courts below. If it is a case under Rule 109-A of the Rules, then, no injunction can be granted without 'dak-halanama. '
(3.) SRI S. N. Singh, learned counsel ap pearing on behalf of respondents on the other hand contends that it is not a case under Rule 109-A but a case under Section 28 which postulate deeming clause of pos session. According to him shares have been declared and possession have been delivered which on the expiry of six months, results in deeming clause, con firming the petitioners' possession. Therefore, the Courts below have rightly granted injunction. After having heard Sri Rai and Sri Singh, it appears that admittedly suit for injunction is maintainable in the Civil Court, but the question is as to whether the Court had granted injunction rightly or as to whether the plaintiff has been able to make out prima facie case for the pur poses of injunction, in the facts and cir cumstances of the case. If the suit is not barred in that event the trial Court had jurisdiction to proceed with the suit and grant injunction, if prima facie case is made out. Normally, injunction is not granted against co-owners, but at the same time the co-owners in possession have every right to defend his possession and seek injunction against another co-owner, seeking dispossession of the Plaintiff from his possession. Since it is admitted that the Defendants are not going to make any construction, therefore, it is not necessary to go into that question. In the present case both the Courts have given concur rent finding that the share of the Plaintiffs have been declared and the same have been executed and possession have been given. Therefore, the same being finding of fact this Court in revision cannot inter fere with the same. Admittedly, the order of the Civil Court by virtue of the provisions as contained in Consolidation of Holdings Act and various other relevant rules relating to land revenue and tenure the order of the Civil Court is al ways subject to such proceeding and in case of any -contradiction between the Civil Court and competent Revenue Court, the Civil Court's order would not stand in the way of decision of the Revenue Court in the matter over which it has exclusive jurisdiction to exclusion of the Civil Court. Therefore, even if any interim order is granted by the Civil Court it will not effect any proceeding before the Revenue Court or in a court of competent jurisdiction in respect of which it has ex clusive jurisdiction.;