AHER MESA HAMIR Vs. CHARAN SHAMLA SURA

JUDGEMENT

(1.) This matter arises out of an order passed on an interlocutory application for an adinterim Injunction under order 39 of the Code of Civil Procedure in a suit filed by the opposite party for a declaration that the plaintiff is the owner and a person in possession of a field Survey No. 38 for confirmation of his possession of that field and for a permanent injunction restraining the defendant (present petitioner) from interfering with plaintiffs lawful possession of the suit field. This very field was the subject matter of a proceeding under sec. 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) where in the learned Magistrate by his order dated September 25 1970 declared that the petitioner (defendant) was in actual possession of the land in dispute on June 22 1970 The learned Magistrate also declared that the petitioner was entitled to possession thereof until evicted in due course of law. The opposite party i.e. present plaintiff was forbidden by that order from interfering with petitioners possession of this land and from entering that field. I am told by Mr. Vyas for the opposite party at the Bar that against this order the opposite party went in revision to the District Magistrate and that that revisional application came to be dismissed on July 27 1971 Meanwhile however on October 10 1970 that is after the passing of the aforesaid order by the learned Magistrate the suit from which present revisional application has arisen was commenced by the opposite party. Having brought the suit praying for a relief of permanent injunction the opposite party applied for an adinterim injunction under Order 39 of the Code of Civil Procedure; and the trial Court granted the same after hearing the petitioner. The lower appellate Court confirmed this order. Against that order the petitioner has come in revision to this Court.

(2.) The point canvassed in this revision application is that both the Courts below acted with material irregularity in exercise of their jurisdiction inasmuch as they granted the temporary injunction against the petitioner so as to nullify the effect of an injunction granted by the Magistrate under sec. 145 of the Code against the opposite party. It has been pointed out that the effect of the injunction granted by the trial Court in the present case was to bring into existence cross injunctions against both the sides to this litigation. It was also contended that the injunction order is in contravention of the provisions of sub-sec. (6) of sec. 145 of the Code because the present petitioner has not yet been evicted from the field in question. According to the petitioner so long as he has not been evicted in due course of law he is entitled to continue in possession under the order passed by the Magistrate under sec. 145 of the Code. The relevant provisions of sec. 145 may be reproduced:

(3.) We have already seen that the object of the section is to prevent breach of peace and with that view to protect the actual possession of a party on the date of the order. As the Magistrate does not enter into an enquiry as to the title or right to such possession the protection of that possession would be by virtue of an order made under sub-sec. (6) of sec. 145 irrespective of the question of title or right to such possession. This provision in my opinion confers a statutory right on a person found and declared to be in actual possession on the date of the order under sec. 145(1) to continue that possession till he is evicted in due course of law. Both the Courts below have ignored this statutory right of the defendant. That right comes to an end only on passing of a decree or order for eviction in due course of law. So long as that right exists no injunction could issue against the successful party.