RAJASTHAN HIGH COURT

                 Bhanwar Lal

                 Vs.

                 Mahadev Vikash Samiti, Bikaner

                 Civil Misc. Appeal No. 986 of 2001
                            (H.R. Panwar, J.)

                 22.04.2002

                 ORDER

H.R. Panwar, J.

1. This appeal is directed against the order dated 29-10- 2001 passed by District
Judge, Bikaner (hereinafter referred to as 'the trial Court') whereby the application
filed by the respondent under Order 39, Rules 1 and 2, Civil Procedure Code was
allowed and the appellants were directed not to interfere with the construction of Govt.
Girls School building, use and occupation of the land in dispute, education imparted
by the school and were further directed not to do any act which adversely affects the
rights of the respondents. Aggrieved by the impugned order of the trial Court, the
defendant appellants have filed the present appeal under Order 43, Rule 1, Civil
Procedure Code.

2. Briefly stated facts to the extent they are relevant and necessary for decision of this
appeal are that a suit for declaration and permanent injunction was filed by the
plaintiff respondents Sri Mahadav Vikash Samiti, Bikaner (hereinafter referred to as
'the Samiti) through its Chairman trustee and the Secretary trustee having been
authorized by the Trust to file the suit against the defendant appellants stating therein
that the land in dispute has been made available to them for construction of building
for Govt. Girls School. The Additional Director (Administration), Board of Primary
and Secondary Education, Rajasthan, Bikaner by its letter dated 16-9-93 sanctioned
construction of Govt. Girls School on the land in dispute. A sum of Rs. 4,00,000/-
were sanctioned by the State Govt. from the quota of the local M.L.A. who is
presently Minister in the State Cabinet for construction of building for Govt. Girls
School on certain conditions mentioned in the order dated 16-9-93. Work of
construction of building for Govt. Girls School has been assigned to M/s. Mayur
Construction Co., Bikaner by a contract entered into between the State Govt. through
its Executive Engineer of Public Works Department and the construction company.
While the construction work was being done, the defendant appellants threatened the
members of the Samiti and the persons raising construction of the Govt. Girls School
building that the respondents being members of Scheduled Caste, would lodge false
cases against the School Management and members of the Samiti. They tried to
obstruct the construction work carried out by the contractor. It is said that the title of
the land vests in Maheshwari Nathani Panchayat and the land in dispute has been
given to the Samiti by the Maheshwari Nathani Panchayat Trust for the purpose of
construction of Govt. Girls School, Defendant appellants filed a reply to the
application under Order 39, Rules 1 and 2, Civil Procedure Code wherein it was
admitted that the title patta for the land might have been in the name of the
Maheshwari Nathani Panchayat. In para 10 of the reply, it was averred that the land in
question belong to Maheshwari Nathani Panchayat Trust and its Chairman has no
right to transfer the land. It was further averred that the land in question is a public
land and chowk of Meghwal Samaj. It was further averred that the construction of
Ambedkar Bhawan by Meghwal Samaj is proposed on the land in question.

3. Learned trial Court consider the material placed before it. Three essential
ingredients for grant or refusal of temporary injunction, namely, prima facie case,
balance of convenience and irreparable injury, were considered by the trial Court.
While considering the prima facie case, the trial Court held that on the basis of the
documents filed before it, prima facie, the land in dispute relates to Patta No. 750 of
the year 1919, in the name of Maheshwari Nathani Panchayat. The said Panchayat
Trust has issued no objection for construction of building for Govt. Girls School to the
Primary and Secondary Education, Department of Education, Rajasthan, Bikaner,
Plaintiff Samiti is a registered society. There was an earlier suit and an application
under Order 39, Rules 1 and 2, Civil Procedure Code filed by Kamla alias Kamalo
Meghwal and Santu alias Santosh Kumar Meghwal before Civil Judge (Junior
Division), Bikaner with regard to the very same land in question. Vide order dated 4-
11-97, the applications filed by Kamla and Santu as also by Dayal Chand and others
seeking temporary injunction were rejected. As against the order of the trial Court
dated 4-11-97 rejecting the application for temporary injunction, the petitioners therein
preferred appeal before the learned Additional District Judge No. 1, Bikaner, which
came to be dismissed by the appellate Court vide order dated 9-1-98. The trial Court
also dismissed the main suit vide judgment and decree dated 1-10-2001. The trial
Court also considered that a sum of Rs. 4,00,000/- has been sanctioned for
construction of building for Govt. Girls School from the M.L.A. quota by the State
Government. The trial Court prima facie examined the title as well as the question of
possession of the land. Trial Court also considered the Commissioner's report. After
having considered all the material, the trial Court prima facie came to the conclusion
that the land is in possession of the Samiti and the construction of Govt. Girls School
is being raised and as such, came to the conclusion that the Samiti has prima facie
case in its favor. The trial Court also prima facie came to the conclusion that the
defendant appellants have not produced any document showing the land in dispute to
be public land of Meghwal Samaj.

4. While deciding the question of balance of convenience, the trial Court held that
from the funds made available by the State Govt. the Samiti through contractor is
constructing the building for Govt. Girls School and in case the Samiti is restrained to
construct the building for Govt. Girls School, it will result in inconvenience to the
Samiti and the larger interest of girls students would be adversely affected. On the
contrary, if the injunction is granted, defendant appellants would not be put to any
inconvenience. Having considered the totality of the circumstances of the case, the
point of balance of convenience was found to be in favor of the respondent Samiti.

5. While deciding the point of irreparable loss and injury, the trial Court held that in
case the construction of building for Govt. Girls School is restrained, then the Samiti
would definitely suffer irreparable injury as well as the fund of Rs. 4,00,000/- allotted
for construction of building for Govt. Girls School would lapse and the Govt. Girls
School building would not be available to the girl students. The trial Court also
considered that in case the injunction is granted, the defendant appellants would not
suffer any irreparable injury inasmuch as neither the defendant appellants are in
possession of the land in question nor they have prima facie any title thereto.

6. I have heard learned counsel for the parties. Perused the order impugned and the
relevant material.

7. The defendant appellants have filed an application under Order 41, Rule 27 read
with Section 151, Civil Procedure Code along with certain documents, namely, map,
parcha khatoni relating to Khasra No. 174. The certified copy of the suit filed by one
Khem Chand alias Khema, copy of the plaint, suit filed by Dayal Chand, order of the
Civil Judge (Junior Division), Bikaner in Civil Misc. 199/96 dated 4-11-97 were
placed on record. The learned counsel for the appellants contended that the trial Court
erred in finding a prima facie case in favour of the Samiti. It is further contended that
the finding on prima facie case had to be adjudged comparatively. It was further
contended that the burden to establish the prima facie case is on the plaintiff Samiti
and not on the defendant appellants. He further contended that the patta (title) might
be in the name of the Maheshwari Nathani Panchayat but since the Maheshwari
Nathani Panchayat is a trust and its Chairman has no right to give the land to the
Samiti as also the State Govt. has no right to construct the Govt. Girls School building
on the land in question.

8. Learned counsel for the respondent Samiti contended that the defendant appellants
have not claimed title of the land in dispute in their reply filed before the trial Court.
On the contrary, they averred that the patta for the said land is in the name of
Maheshwari Nathani Panchayat. Appellant defendants admitted in their reply filed
before the trial Court that the land in question belong to Maheshwari Nathani Pan-
chayat Trust. Before the trial Court, the Samiti has placed on record the document of
its registration, patta issued in Mishal No. 288, Patta No. 750 of the year 1919 in
favour of Maheshwari Nathani Panchayat, the order of the trial Court in two different
suits filed by Kamla Meghwal, Santu Meghwal and Dayal Chand and others whereby
the trial Court dismissed the application seeking temporary injunction and those orders
were affirmed even by the appellate Court. The Commissioner's report also shows that
the Samiti is in possession of the land in question and construction of building for
Govt. Girls School had already commenced, the contract for construction of Govt.
Girls School building has already been given. The State Govt. has sanctioned the fund
of Rs. 4,00,000/- for this purpose. The building for Govt. Girls School is constructed
for the public use as the girl students of the area would be largely benefited by
education imparted to them through the school. The Samiti has also placed on record
before the trial Court the order dated 31-8-2001 issued by the Executive Engineer,
P.W.D., City Division, Bikaner in favour of Mayur Construction Company, Bikaner
for construction of building for Govt. Girls School, Nathusar Bas, Bikaner. The
stipulated date of commencement of work was from 10-3-2001. From the various
documents placed on record, it clearly goes to show that the Samiti is in possession of
the land and the Govt. Girls School building was in process of construction when the
suit was filed.
9. From the material placed before the trial Court, the plaintiff Samiti prima facie
established that the land in dispute is in possession of the Samiti for the purpose of
construction of Govt. Girls School, Nathusar Bas, Bikaner. This fact further finds
support from the fact that the State Govt. has sanctioned the fund of Rs. 4,00,000/- for
construction of building for Girls School and the contract has already been entered
into between the P.W.D. of the State Govt. and M/s. Mayur Construction Co. The
Samiti has undertaken the work of public development in the area by construction of
Girls School through its development programmes. At any rate, the building for Govt.
Girls School is constructed by the State Govt. through its Department of Public Works
from the public fund of the State. It is settled law that the order for grant or refusal of
temporary injunction is absolutely discretionary and equitable. The discretion
exercised by the trial Court while granting the temporary injunction can be interfered
in appeal if the appellate Court comes to the conclusion that the order of the trial Court
suffers from perversity.

10. In United Commercial Bank v. Bank of India, 1 the Hon'ble Supreme Court has
held that no injunction could be granted under Order 39, Rules 1 and 2, Civil
Procedure Code unless the plaintiffs establish that they had a prima facie case,
meaning thereby that there was a bona fide contention between the parties or a serious
question to be tried. In the instant case, the Samiti is in possession of the land in
question. It has derived the land from its original owner Maheshwari Nathani
Panchayat in whose favor prima facie title stands vide patta dated 7-7-1919. From the
material placed on record before the trial Court, namely, the patta of the land in
question, registration of the Samiti, Commissioner's report, sanction of the fund of Rs.
4,00,000/- by the State Govt. the order of construction of Govt. Girls School by the
Department of Public Works of the State etc. prima facie the Samiti has established its
case. As against this, the defendant appellants have not shown any document showing
the land to be belonging to the Meghwal Samaj. Not only this, in the reply filed by the
defendant appellants before the trial Court, they admitted that the patta of the land in
question might be in the name of Maheshwari Nathani Panchayat and the land in
question belong to Maheshwari Nathani Panchayat, they have not disputed the title of
Maheshwari Nathani Panchayat. Not only this, even the documents filed by the
defendant appellants before this Court i.e. parcha khatoni for the Samwat 2058 also
shows that the land of Khasra No. 174 measuring 0.28, bigha is recorded in the record
of rights as gair mumkin chah (a public well). This further goes to establish that
originally the land was recorded as public well of Maheshwari Nathani Panchayat.
Thus, if the instant case is adjudged comparatively, then also the balance tilt in favor
of plaintiff Samiti. In this view of the matter, I am of the considered opinion that no
error can be found in the order of the trial Court in deciding the prima facie case,
balance of convenience and irreparable injury in favor of the Samiti.

11. In Wander Ltd. v. Antox India Pvt. Ltd. 2 the Hon'ble Supreme Court held as under
:-

       "The appellate Court will not interfere with the exercise of discretion of the
       Court of first instance and substitute its own discretion except where the
       discretion has been shown to have been exercised arbitrarily, or capriciously or
       perversely or where the Court had ignored the settled principles of law
       regulating grant or refusal of interlocutory injunctions. An appeal against
       exercise of discretion is said to be an appeal on principle. Appellate Court will
       not reassess the material and seek to reach a conclusion different from the one
       reached by the Court below solely on the ground that if it had considered the
       matter at the trial stage it would have come to a contrary conclusion. If the
       discretion has been exercised by the trial Court reasonably and in a judicial
       manner the fact that the appellate Court would have taken a different view may
       not justify interference with the trial Court's exercise of discretion."

12. In the instant case, nothing has been pointed out by the learned counsel for the
appellants as to how the discretion exercised by the trial Court is arbitrary or
capricious or perverse. Having examined the case in the light of the observations made
by the Hon'ble Supreme Court in Wander Ltd.'s case (supra), in my considered
opinion, the discretion exercised by the trial Court cannot be said to be arbitrary or
capricious or perverse. On the contrary, the trial Court has exercised the discretion
after having considered the material placed before it in right perspective. Thus, in my
considered view, the order of the trial Court calls for no interference.

13. In view of the aforesaid discussion, I find no merit in this appeal. Accordingly, it is
dismissed. It is made clear that any observation made either by the trial Court or by
this Court should not be taken to be relevant at the trial of the suit on merits. No order
as to costs.

Appeal dismissed.
Cases Referred.

1. (1981) 2 SCC 766
2. (1990 (Supp) SCC 727