SBCMA No.1628/2008
Mahaveer Prasad & Ors. Vs. Shri Aadi Gaur Vipra Samaj
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SBCMA No.1628/2008
Mahaveer Prasad & Ors.
Vs.
Shri Aadi Gaur Vipra Samaj
DATE OF ORDER : - 1.12.2008
HON'BLE MR. PRAKASH TATIA, J.
Mr.OP Joshi,for the appellants.
Heard learned counsel for the appellants.
The appellants are aggrieved against the order dated
3.11.2008 by which the appellants’ application for grant of
temporary injunction was rejected and the application of the
defendant filed alongwith counter claim was allowed.
However, the trial court directed both the parties to
maintain the status quo and restrained from alienating the
property in dispute.
According to learned counsel for the appellants, the
appellants are in possession of the part of the property and
they are having title by virtue of the Will dated 21st August,
1950. The appellants placed on record the documentary
evidence to show that they are owner and in possession of
the property. The defendant set up a gift deed dated 28th
Nov., 2005, but that is of no use as well as the appellants’
SBCMA No.1628/2008
Mahaveer Prasad & Ors. Vs. Shri Aadi Gaur Vipra Samaj
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title is concerned, it is also submitted that the predecessor
of the alleged donor himself transfered title in favour of the
appellant by Will. It is also submitted that the trial court
has not decided the issue of prima facie case, balance of
convenience and irreparable injury in detail though framed
issue. It is also submitted that in the counter claim the
defendants themselves admitted possession of the appellant
over the part of the property though under different
capacity.
I considered the submission of learned counsel for the
appellants and perused the facts mentioned in the counter
claim.
The apprehension of appellant that there is
observation of the trial court in the impugned order may be
observation on merit is concerned, it has no legal
foundation because of the reason that any observation
made in the impugned order with respect the question of
fact is only a prima facie finding of the court below which is
required to be recorded while deciding the injunction
application and it has nothing to do with the merit of the
suit. Therefore, appellants’ rights in proving their title of
SBCMA No.1628/2008
Mahaveer Prasad & Ors. Vs. Shri Aadi Gaur Vipra Samaj
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the property or the Will remain unaffected.
So far as possession is concerned , for that if the
defendants have admitted possession of the appellant over
the property in dispute that fact has not been rejected by
the trial court in impugned order and, therefore, directing
both the parties to maintain the status quo with respect to
the property in dispute and not to alienate it in the facts
and circumstances of the case is just and reasonable order,
which could have been passed.
Once the order can be justified with the help of other
grounds, it need not to be set aside merely because of the
fact that it is not elaborate and detailed order.
In view of the above, I do not find any reason to
interfere in the impugned order. However, it is made again
clear that any observation made in the impugned order will
not come in the way of any of the parties on merit of their
cases.
Hence the appeal of the appellants is disposed of.
(PRAKASH TATIA), J.
c.p.goyal/-