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Civil Rule No. 842 of 1967, decided on 21st June 1968.

--- Temporary injunction‑Suit for setting aside certificated sale -Prayer for temporary injunction by plaintiff‑Position dubious whether plaintiff or defendant in actual physical possession of disputed land‑Receiver for property, in circumstance, ordered to be appointed pending disposal of suit‑Civil Procedure Code (V of 1908), O. XL, r. 1.

S. S. Halder for Petitioner.

T. H. Khan for the Opposite‑Party No. 1.

Nizamuddin Haider for the Opposite‑Party No. 2.

This Revisional application is directed against an order rejecting the prayer for temporary injunction pending the dis posal of the suit filed by the plaintiff. The plaintiff had filed a suit in the Court of Munsif at Bagerhat for setting aside a certified sale. It appears that the disputed land originally belonged to Roy Babus. The plaintiff claims the said land as tenants under the said Roy Babus. However in the survey under State Acquisition Act the names of Roy Babus was entered as being in possession. The Government put the property to sale pursuant to a certificate for arrears of cesses. It is claimed by the petitioner that the processes were suppressed and the sale was liable to be set aside. The plaintiff petitioner claim that he is in possession of the disputed land. As such he prays that the defendants be restrained from disturbing of the possession of the defendant before disposing the suit itself. The Government entered appearance and had stated that the sale was held legally and that there was no suppression of any processes.

On a perusal of the affidavit on both sides the trial Court held that he was of opinion that the plaintiff had failed to prove the prima facie case. He was further of opinion that the plaintiff would suffer no material injury if temporary injunction is not granted. The appellate Court uphold the order rejecting the prayer of temporary injunction by the trial Court. Hence this Rule. In the petition filed before me in this Court it has been stated that in the written statement filed by the opposite‑party the land was barga settled by the Government with the opposite‑party No. 2. But that fact the Government barga settled the land with the opposite‑party No. 2 is not controverted by the petitioner in his petition. In the affidavit- in‑opposition also no reply is made to the statement regarding the barga‑settlement and only in paragraphs 10 it is stated that the opposite‑party No. 2 had been alloted the land this year also in yearly settlement. But it is clearly denied by the opposite- parties 2 and 3 that the plaintiff is in possession of the disputed land at the present moment. This High Court on 12‑6‑67 issued a Rule and at the same time granted the prayer of ad interim injunction. So I am concerned with the factum of possession as obtaining on 12‑6‑67. In the absence of a clear assertion by the opposite‑parties that they were in possession of the disputed land on 12‑6‑67 the presumption would be that the plaintiff was in possession of the disputed land. I think if the plaintiff is in actual physical possession of the disputed land at this moment the balance of convenience and in convenience would be in his favour. But the position does not appear to be clear from the affidavits. In view of this dubious position as to the actual physical possession of the disputed land and to prevent any breach of peace and in the interest of justice I direct that the trial Court would appoint a receiver for the said property pending the disposal of the suit. Pending the appointment of the receiver the status quo as obtaining on the 12th of Jun 1967, shall be maintained by both the parties. The trial Court is, however, directed to expedite the hearing of the suit, and the parties are directed to co‑operate with the trial Court for an expeditious hearing.

The Rule is therefore, discharged with the above direction. There would be no order as to costs.

K. B. A.

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