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Pishora Singh v. Shrimati Lajo Bai .
Factual and Procedural Background
Khalinda Ram was the owner of a suit land measuring 506 kanals and died in 1959 leaving behind his widow Smt. Tulchhi Bai, three sons (Bhagwan Dass, Om Parkash, Chettan Dass), and five daughters (including Smt. Lajo Bai and Smt. Bhago Bai). All nine heirs succeeded to the land with equal shares of 1/9 each. The widow, acting as guardian for her daughters, executed a registered relinquishment deed in favor of her three sons, which led to mutation of shares in 1961. In 1973, Bhagwan Dass exchanged a portion of this land (24 kanals 12 marlas) with land belonging to Pishora Singh. Smt. Lajo Bai and Smt. Bhago Bai filed suit seeking a declaration that the relinquishment deed and the land exchange were not binding on them and sought a perpetual injunction against Pishora Singh from erecting buildings on the exchanged land. They also sought an ad-interim injunction which was initially declined by the trial court but granted by the lower Appellate Court. Pishora Singh filed a revision petition challenging the appellate order.
Legal Issues Presented
- Whether the relinquishment deed executed by Smt. Tulchhi Bai in favor of her sons was valid and binding on the daughters.
- Whether Bhagwan Dass had the right to exchange the land and whether Pishora Singh had a valid title to the exchanged land.
- Whether the grant of ad-interim injunction by the lower Appellate Court restraining Pishora Singh from constructing a factory on the land was justified.
Arguments of the Parties
Plaintiff-Respondents' Arguments
- The relinquishment deed executed by the widow was not binding on the daughters.
- The land exchange transaction by Bhagwan Dass with Pishora Singh was not binding on them.
- They sought a declaration to that effect and an injunction restraining Pishora Singh from construction on the land.
- Relied on Kishori Lal v. Khair Din (AIR 1937 Lah 288) to argue that Bhagwan Dass could not alienate the land and Pishora Singh could not raise constructions on it.
Petitioner (Pishora Singh)'s Arguments
- He obtained the land in exchange for canal irrigated land from Bhagwan Dass and had lawful possession.
- He had obtained a loan from Haryana Khadi and Gram Board for construction of a factory and had commenced construction up to plinth level.
- He argued that the land exchanged was less than Bhagwan Dass’s 1/9 share and that his title was valid under the principle that a co-sharer in exclusive possession can transfer his share to a third party.
- He offered to surrender possession if the land fell to the plaintiff-respondents on partition without claiming costs.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tek Singh v. Jaswant Singh (1971 PLJ 656) | Right of a co-sharer in exclusive possession to transfer his share to a third party subject to rights of other co-sharers on partition. | Used to establish that Pishora Singh acquired valid title from Bhagwan Dass and was exercising his rights by constructing the factory. |
| Kishori Lal v. Khair Din (AIR 1937 Lah 288) | Restriction on co-sharers erecting buildings on joint property beyond their share. | Court distinguished the facts, finding that the case was not applicable as Bhagwan Dass exchanged less than his share and obtained equal land in exchange. |
| The Managing Director (MIG) Hindustan Aeronautics Ltd. v. Ajit Prasad (1972) 3 SCC 195, AIR 1973 SC 76 | Appellate courts should be slow to upset trial court decisions on injunctions unless discretion is exercised unreasonably. | Applied to hold that the lower Appellate Court erred in granting injunction against Pishora Singh contrary to trial court’s reasoned decision. |
| Pandurang Dhondi Chougule v. Maruti Hari Jadev (AIR 1966 SC 152) | General principles on appellate interference in discretionary orders. | Supported the proposition that appellate interference in injunction matters requires sound judicial reason. |
| D.L Housing and Construction Company (P) Ltd. v. Sarup Singh (1969) 3 SCC 807, AIR 1971 SC 2324 | Principles governing grant and interference with injunctions. | Reinforced that appellate court’s intervention must be justified on sound principles. |
| Bhan Singh v. Kanwaljit Singh (AIR 1969 Delhi 349) | Judicial discretion in injunctions and appellate review. | Referred to support the principle of judicial restraint in appellate interference. |
| Tara Chand v. Satya Wati (1963) 79 PLR 566 | Scope of appellate interference in discretionary orders. | Used to affirm the need for caution in appellate interference with trial court injunction decisions. |
Court's Reasoning and Analysis
The court analyzed the facts that Khalinda Ram’s land was inherited by nine heirs with equal shares and that Bhagwan Dass’s share was 1/9 (56 kanals 4 marlas). The exchanged land was less than half of Bhagwan Dass’s share and he received an equal area in exchange from Pishora Singh. The court relied on the principle that a co-sharer in exclusive possession may transfer his share to a third party, subject to other co-sharers’ rights on partition, as established in Tek Singh v. Jaswant Singh. Hence, Pishora Singh’s title and possession were valid, and his construction was lawful.
The court emphasized the settled principles for granting ad interim injunctions: the plaintiff must show a prima facie case, balance of convenience in their favor, and irreparable injury. The trial court had declined the injunction, reasoning that Pishora Singh had obtained a loan and started construction, and that refusing injunction would cause him irreparable loss. The appellate court’s grant of injunction was found to be a material irregularity as it disregarded these principles and was not based on sound judicial discretion.
The court further distinguished the precedent relied upon by the plaintiffs (Kishori Lal v. Khair Din), noting the factual differences and that it did not assist the plaintiffs. The court also acknowledged the legal principle that appellate courts should be slow to disturb trial court injunction decisions unless discretion is exercised unreasonably or with material irregularity.
Finally, the court noted Pishora Singh’s offer to surrender possession if the land fell to the plaintiffs on partition, further mitigating any potential injury to the plaintiffs.
Holding and Implications
The revision petition is allowed and the order of the lower Appellate Court granting the ad interim injunction is set aside. Consequently, the application for ad interim injunction by the plaintiff-respondents is dismissed.
The direct effect is that Pishora Singh may continue construction on the land pending final adjudication of the suit. No new precedent is established as the decision is limited to the facts of this revision petition. The parties are left to bear their own costs.
M.L Verma, J.:— The circumstances giving rise to this revision petition may be but fly stated as under:—
2. Khalinda Ram was owner of the suit land, which is 506 kanals in area. He died on September 10, 1959, leaving behind his widow Smt. Tulchhi Bai, three sons, viz., Bhagwan Dass, Om Parkash and Chettan Dass, and five daughters; viz., Sarvshrimati Lajo Bai, Bhago Bai, Paso Bai, Bhagwani Bai and Kalo Bai. Therefore, all of them succeeded to the aforesaid land, measuring 506 kanals, as heirs of Khalinda Ram and their shares therein were 1/9 each. On October 15, 1959, Smt. Tulchhi Bai relinquished her share as well as the shares of her five daughters in the aforesaid land in favour of her three sons, viz., Bhagwan Dass, Om Parkash and Chettan Dass. In doing so, she had acted as guardian of her daughters. The relinquishment deed was registered and on its basis mutation No. 1802 was sanctioned on April 27, 1961. In the month of July, 1973, Bhagwan Dass exchanged land measuring 24 kmals 12 marlas comprised in fields No. 21, 22 min of Rectangle 2 and fields No. 24, 25 of Rectangle 29 (hereinafter called the land) out of the aforesaid land measuring 506 kanals, left behind by Knalinda Ram with the land, equal in area, comprised in fields No. 3/1, 3/2, 4, 5, 7 min, 8 min and 13 min of Rectangle 21 and field No. 1 of Rectangle 21 belonging to Pishora Singh. Smt. Lajo Bai and Smt. Bhago Bai instituted the suit for declaration that the aforesaid relinquishment deed and the transaction of exchange of land effected by Bhagwan Dass with Pishora Singh were not binding on them. They impeached the validity of the relinquishment deed, executed by Smt. Bhago in favour of her sons, alleging that she had been right to relinquish their shares in land in their (her son) favour.
3. As a consequential relief, they claimed perpetual injunction to restrain Pisora Singh from erecting building on the land. Along with the suit they moved an application under order 39 rules 2 and 3 and section 151, Civil Procedure Code, for ad-interim injunction restraining Pishora Singh from raising construction on the land Pishora Singh contested the said application. He pleaded that he had obtained the land by giving canal irrigated land to Bnagwan Dass in exchange, for installing the factory and had obtained loan from the Haryana Khadi and Gram Board, Chandigarh, for the purpose, and that physical possession of the land had been delivered to him. The trial Court declined the ad-interim injunction prayed for by Smt. Bhago and Smt. Lajo. They carried appeal and the learned Additional Judge, Hissar, Page: 32granted the ad-interim injunction restraining him from raising construction on the land. Therefore Pishora Singh has come to this Court in revision.
4. The facts that Khalinda Ram had died leaving behind land measuring 506 Kanals, that Bhagwan Dass and two others are his sons and Smt. Tulchhi Bai is his widow, and Smt. Lajo Bai and Smt. Bhago Bai are his daughters and they are his heirs, are not disputed.
5. It, thus, means that there were nine heirs of Khalinda Ram, who had succeeded to the land measuring 516 kanals and the share of Bhagwan Dass therein even if the relinquishment executed by Smt. Tulchhi Bai on her behalf or on behalf of her daughters in his favour and in favour of his two brothers is ignored, was 1/9. The area of land of his 1/9 share would be 56 Kanals 4 Marlas. Therefore, it cannot be gainsaid that the land, which had been exchanged by him with Pishora Singh's land, is less than his 1/9 share in the land measuring 506 kanals.
6. The principles governing the grant of ad interim injunction are well settled and these are (a) that the plaintiff has a prima facie case, (b) that the balance of convenience is in his favour, and that (c) he would suffer an irreparable injury if his prayer for temporary injunction is disallowed. “Irreparable injury” would mean the one which cannot be compensated by money. The grant of an ad interim injunction is within the discretion of the trial Court. The said discretion has, however, to be exercised in accordance with reason and on sound judicial principles. The appellate Court would always be slow in upsetting the decision of the trial Court in the matter of grant or non grant of ad interim injunction. Grant of ad interim injunction is a very serious matter since it restrains the opposite party from exercising his right. Therefore, it is the duty of the Court while considering the grant of ad-interim injunction to see whether its interference is necessary to protect the party applying for it from the particular kind of injury which is said to be irreparable. It is further necessary to see what would be comparative mischief and inconvenience resulting from the refusal of such injunction to the either side or in the event of it bring granted. It is only after careful comparison between the convenience of two sides that the Court can arrive at a judicial verdict warranting the grant or non-grant of ad interim injunction. Before ad interim injunction is granted in favour of a party, the Court should be satisfied that there is real apprehension of his suffering an injury if the same is declined to him. The lawful exercise of a right vesting in a person cannot be said to be an injury and, as such the same cannot furnish a ground for granting an injunction restraining such person from exercising it.
7. As indicated above, Bhagwan Dass was admittedly a co-owner in the land measuring 506 kanals and the area falling to his share therein was 56 kanals 4 marlas. So, he had given the land which is less than half of his share in the aforesaid land measuring 506 kanals, to Pishora Singh in exchange of an equal area of land taken by him from Pishora Singh. It was alleged that he was in exclusive possession of the land and he had delivered its possession to Pishora Singh. Pishora Singh had come into possession of the land after the exchange of lands because it is definite that he has raised construction of the factory upto the plinth level. It has been observed in Tek Singh v. Jaswant Singh 1971 PLJ 656, that a co-sharer in exclusive possession of the site to the exclusion of other co-sharers has every right to transfer that site to a third person who would acquire a valid title thereto, subject, however, to the right Page: 33of the other co-sharers to have their respective shares assured to them on a partition, it is, thus, clear that Pishora Singh had acquired title in the land on account of the exchange of the land, referred to above, and it was in exercise of his rights that he was constructing factory on it. Therefore, it cannot be said that he was causing any injury or that the plaintiff respondents could have any reasonable apprehension of any injury to their rights. Their rights are protected for the obvious reason that land, which had been given to Pishora Singh petitioner by Bhagwan Dass, is less than the area owned by him in the land measuring 506 kanals. On a partition, if and when claimed by the plaintiff respondents, the land would be adjusted to the share of Bhagwan Dass. Therefore, raising of the construction of fact Dry by Pishora Singh on the land would not cause any injury to the plaintiff respondents, much-less the one which would not be compensated by payment of money. Apart from all this, Pishora Singh has made statement today that in case the land would fall to the shares of plaintiff-respondents on partition, he will surrender its possession without claiming any costs from them. Pishora Singh had obtained loan of Rs. 40,000/- from the Haryana Khadi and Gram Board, Chandigarh. He had stored some building material on the land and he had raised construction of the factory upto plinth level. So, in the circumstances if he is restrained from constructing the factory, it would cause inconvenience to him and would further cause loss, which may not be valued in money, whereas the plaintiff-respondents would not suffer any injury because, as indicated above, the land will be adjusted to the share of Bhagwan Dass on partition, if claimed by them. There is no allegation that Bhagwan Dass had alienated or transferred any other land out of his share. The lower Appellate Court did not consider these mailers and did not deal with the reason given by the trial Court that the balance of convenience did not favour the grant of ad interim injunction, because Pishora Singh had obtained the loan of Rs. 40,000/- for construction of the Factory. The lower Appellate Court ignored the principle that it should always be slow in upsetting the decision of the trial Court in the matter of grant or non-grant of ad interim injunctions. Therefore, its approach was wrong and contrary to the well established principles governing the grant of ad interim injunctions. As such, the lower Appellate Court has in granting the ad interim injunction, acted in exercise of its jurisdiction with material irregularity and the provisions contained in clause (c) of section 115, Civil Procedure Code, are attracted.
8. Relying on Kishori Lal v. Khair Din AIR 1937 Lah 288, Shri Y.P Gandhi, learned counsel for the plaintiff-respondents, argued that Bhagwan Dass could nor alienate the land and Pishore Singh petitioner could not raise construction on it. The facts of Kishori Lal's case AIR 1937 Lah 288 were different. In that case, the defendants enclosed an area which was ¾th of the joint plot, while their share in it was ???. So, they had enclosed 1/48 area of the joint plot in excess of their share for erecting the machinery. Therefore, the plaintiffs, who were co-sharers and owned 13/48 share in the joint plot, had brought suit for perpetual injunction restraining the defendants from constructing any building on it. Since the defendants were out to build on a portion of joint plot, which comprised an area larger than their share therein, ad interim injunction restraining them to raise the construction was granted. In the Page: 34case in hand, the area of the land given by Bhagwan Dass to Pishora Singh in exchange, as indicated above, is even less than one-half of his share therein. Further, he had obtained equal area of land from Pishora Singh in exchange. So, as a matter of fact there had been no decree even in the area of the land falling to the share of Bhagwan Dass. Therefore, Kishori Lal's case AIR 1937 Lah 288, relied upon by the learned counsel for the plaintiff-respondents, does not render assistance to them.
9. Relying on The Managing Director (MIG) Hindustan Aeronautics Ltd. v. Ajit Prasad (1972) 3 SCC 195 , AIR 1973 SC 76, Pandurang Dhondi Chougule v. Maruti Hari Jadev, AIR 1966 SC 152 D.L Housing and Construction Company (P) Ltd. v. Sarup Singh (1969) 3 SCC 807 , AIR 1971 SC 2324, Bhan Singh v. Kanwaljit Singh AIR 1969 Delhi 349 and Tara Chand v. Satya Wati (1963) 79 PLR 566, Shri V.P Gandhi, learned counsel for the plaintiff-respondents argued that this Court would not correct errors of fact or law and would not interfere with the order of the lower Appellate Court even if it is said to be wrong. There can be no quarrel with the proposition of law laid down in the aforesaid judgments. But, as discussed in para 6 above, the Appellate Court has acted in disregard of the principle that it should have been slow in upsetting the decision of the trial Court by which the ad interim injunction to the plaintiff-respondents had been declined and it cannot be said that it (the Appellate Court) had exercised the discretion in accordance with reason or on sound recognised judicial principles in granting the ad interim injunction. It is for these reasons that the order of the Appellate Court suffers from material irregularity in the exercise of jurisdiction end therefore, it cannot be upheld.
10. Consequently, I allow this revision petition and set aside the order of the lower Appellate Court. So the application moved by the plaintiff-respondents for ad interim injunction stands dismissed. In the circumstances of the case, I leave the parties to bear their own costs.
11. Let there be any misunderstanding, I make it clear that whatever has been said above is limited for the disposal of this revision petition and will not be taken as expression of my views on the merits of the suit.
12. Petition allowed.
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