Rakesh Kumar Jain, J. - (1.) This petition is filed to challenge orders dated 24.04.2014 and 19.05.2014 passed by the Trial Court and the Appellate Court respectively dismissing the application filed by the petitioner for temporary injunction.
(2.) In brief, the petitioner filed a suit for permanent injunction and mandatory injunction on the ground that he is owner in possession of the land measuring 1 Bigha 13 Biswa and 10 Biswansi comprised in Khewat No.2/1 min, Khatauni No.21 min, Khasra No.15503/2719, situated in the revenue estate of village Gurgaon, Tehsil and District Gurgaon. It is alleged that the respondents were earlier co-owners/co-sharers in the aforesaid land, but after partition between the petitioner and the respondents, whereupon mutation no.14679 in respect of the suit land was sanctioned, two separate khewats were carved out. The respondents were allotted Khasra No.15502/2719/1, who sold their share except a plot of 150 sq. yards. A private colony was carved out in the suit land and 43 sale deeds were executed of various shares out of the said khasra number. It is alleged that after the colony was carved out, some land was left out for passage which is reflected in the joint name of the parties and taking advantage of the said fact that the suit land is still in joint possession, the respondents wanted to execute the sale deed of the property in question. The petitioner thus filed the suit in which the Civil Court appointed the Kanungo as the Local Commissioner and directed him to submit the report of the suit land. It is alleged that in the report, it is clearly mentioned that the respondents are in unauthorized possession of the suit land to the extent of 513 sq. yards.
(3.) The Trial Court dismissed the application for temporary injunction with the following observations:- "7. As per the version of the plaintiff the land bearing Khasra no.2719/1 was allotted to the defendant. As per the averment of the plaintiff, he is in possession of the specific khasra number and the defendant is also in possession of specific khasra number allotted to him at the time of the partition. But now the allegations of the plaintiff is that the defendant is threatening to interfere in the possession of the plaintiff by selling his land for which he has already collected building material over there. To substantiate his averments he has also placed on record the report of LC appointed in the previous suit titled as Raj Kumar v. Ram Kishore & Ors. which shows that plaintiff has also encroached upon the land of the defendant, although the defendant has disputed this report of LC by submitting that he was not the party to the previous to the suit by the plaintiff has stressed his thrust upon this report. If for the sake of the argument, this report is to be relied upon, then the plaintiff does not appear to approach the court with clean hands as there is specific allegation of encroachment upon the land of the defendant. Even otherwise, the application in hand is not maintainable as it is not shown to the prima facie that how the defendant is encroaching upon his land and no collection of any material is shown to the satisfaction of the court. As per the own assertion of the plaintiff there is pucca rasta between the khasra numbers used by the plaintiff and the defendant meaning thereby if there is rasta, then no encroachment can be made by the defendant over the land of the plaintiff. Besides it comes out that there are pucca houses in the land of the defendant and in the existence of the pucca houses at the land of the defendant, the plea of the Ld. Plaintiff Counsel qua the encroachment does not seem to be logical. In view of the aforesaid application, no prima-facie is made out in favour of the plaintiff to grant the relief urged. On the same lines no balance of convenience lies in his favour and when there is no prima-facie and no balance of convenience in his favour no irreparable loss or injury could be caused to him.";