Find a Lawyer

Civil Revision No. 218 of 1976, decided on 4th May 1976.

--S. 3 read with Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 do 2 and Land Reforms Regulation, 1972 (M. L. R. 115], para. 25 Temporary injunction-Right of pre-emption-A predatory right cart be defeated by defendants-vendees - Plaintiffs dispossessed seeking temporary injunction to maintain right of pre-emption till date of decree - Plaintiffs if apprehensive of their dispossession, held, must have filed another suit for permanent injunction and secure temporary injunction meanwhile-Plaintiffs having been ejected proper course open : application under para. 25, Martial Law Regula tion 115- Plaintiffs, held, could not seek Court's assistance in suit for pre-emption to keep their right of pre-emption alive up to date of decree,.-[injunction-Pre-emption].

Khan Hamid Ali Sherwani for Petitioners.

Sh. Ifzal Ahmad Qureshi for Respondents.

The petitioners purchased the property in dispute on 9th April, 1975. The respondents filed a suit for possession of this area in exercise of their alleged right of pre-emption on the 28th May, 1975. They based their superior right of pre-emption on their right of tenancy over the land. Along with the plaint they filed an application for temporary injunction to restrain the petitioners from dispossessing them from this area. It was urged in the petition that the defendants-petitioners wanted to dispossess the plaintiffs-respondents by force. In view of this allegation an order of status quo in the form of a temporary injunction was issued by the learned trial Court on the 30th May, 1975. Thereafter on the 12th June, 1975, an application was submitted by the respondents praying that action may be taken against the defendants-petitioners under Order XXXIX, rule 2 (3). C. P. C. for violation of the order of injunction since on the 11th June 1975 they had trespassed into the area in dispute, destroyed the sugarcane and taken away the harvested wheat crop. This application was dismissed by the learned trial Court on the 23rd June, 1975, on the ground that by the 11th June, 1975, the petitioners had not been served with the order of injunction. The respondents also gave a similar report of trespass to the Police. They further submitted an application on 13th June. 1975, to the Assistant Collector, First Grade, for restitution of possession under paragraph 25 of Martial Law Regulation No. 115, known as Land Reforms Regulation. Notwithstanding this, the learned trial Court by its order dated the 5th July, 1975, confirmed the order of temporary injunction on the ground that prima facie, the petitioners' status on the suit land appears to be that of tenants and if they are ousted from the suit land illegally, they would certainly be non-suited in their suit for pre-emption".

2. This order was upheld in appeal by the learned District Judge on the 4th December, 1975. It was argued before him that in view of the admission in the first information report under section 447/149, P. P. C. and the application submitted by the respondents under Martial Law Regu lation No. 115 for restoration of possession, no case for temporary injunction was made out since on their own showing the plaintiffs-respondents were no longer, in possession. The learned District Judge, however, relied upon the Khasra Girdawari of Kharif 1974 and Rabi 1975 and holding that the respondents were prima facie tenants he confirmed the injunction order issued by the learned trial Court and dismissed the appeal.

3. It is clear from the order of the learned District Judge that he did not at all give a finding on the question whether the respondents were in possession of the property in dispute. He has thus acted illegally and with material irregularity in the exercise of his jurisdiction. The reference to the Khasra Girdawari upto Rabi 1975 is not relevant since according to the plaintiffs-respondents the petitioners were guilty of trespass after the harvesting f the crop of Rabi, 1975.

4. The learned counsel for the respondents urged that in spite of this dispossession the respondents were entitled to injunction since otherwise they could not maintain their right of pre-emption over the property in dispute.

5. In view of the admission about dispossession the order of temporary injunction was not at all called for. No temporary injunction could be issued to restrain the defendants from ejecting the person who was already dispossessed.

6. In my view, this injunction order could not have been issued on another ground too. It is a settled law that a pre-emptor has to show hi superior right of pre-emption on three dates i.e. the date of sale of the property, the date of institution of the suit and the date of the decree. The object of the plaintiff's-respondents in applying for injunction is to seek assistance of the Court to enable them to retain the superiority of the right of pre-emption, if any, up to the date of the decree. The pre-emption right being a predatory right can be defeated by the defendants-vendees. In these circumstances, I do not see how the plaintiffs can seek the assistance of the Court to enable them to maintain the right of pre-emption till the date of decree.

7. If the plaintiffs were apprehensive of their dispossession they should have filed another suit for permanent injunction in which case a temporary injunction could be issued in their favour under Order XXXIX, rule 2, C. P. C. That suit should have been independent of their plea about superiority of right to preemption. After their ejectment obviously the proper course open to them is the same which had already been adopted by the plaintiffs ; i. e. an application under paragraph 25 of Martial Law Regulation No. 115. They could not, however, seek the assistance of the Court in their suit for pre emption for keeping their right of pre-emption alive up to the date of the decree. The learned trial Court and the learned District Judge have acted illegally and with material irregularity in the exercise of their jurisdiction by ignoring this principle also.

8. I allow this petition with costs throughout, set aside the orders of the learned Courts below and dismiss the application for temporary injunction submitted by the respondents.

S. A. H. Revision allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.