JUDGMENT
Deepak Gupta, J.
1. This appeal under Order 43 Rule 1-r of the Code of Civil Procedure is directed against the order dated 29.4.2005 passed by the learned District Judge, Bilaspur in CMP No. 138 of 2005.
2. The facts necessary for the decision of the case are that the respondents (hereinafter referred to as the plaintiffs), filed a suit for declaration that they are owners in joint possession in equal shares of land measuring 4.5 bighas comprised in Khewat No. 29, Khatauni No. 22, Khasra No. 3, situated at village Bhatoli, Pargana Bahadurpur, Tehsil Sadar, District Bilaspur, H.P. and for permanent prohibitory injunction restraining the appellant (hereinafter referred to as the defendant) not to interfere in the peaceful ownership and possession of the plaintiffs in the suit land.
3. The appellant took up the plea that Lekh Ram, the predecessor-in-interest of the plaintiffs had sold the suit land to the defendant and handed over the possession of the property to the defendant. It was also averred that in case it is held that the sale deed in question should not be relied upon because the same had not been registered, then the defendant having been in possession since 1997 had become owner by way of adverse possession. The trial Court held that the plaintiffs had proved their case and also came to the conclusion that the defendant was not in possession of the suit land and had not been able to prove his case that he had become owner by way of adverse possession. The suit of the plaintiffs was decreed and they were declared to be joint owners in possession and consequent decree was passed in favour of the plaintiff restraining the defendant from interfering in the peaceful ownership and possession of the plaintiffs.
4. The defendant filed an appeal against this judgment and decree before the learned lower appellate Court. Alongwith the appeal, he filed an application under Order 39 Rules 1 and 2 C.P.C. for restraining the plaintiffs from interfering in his possession on the strength of the decree. In this application it was averred that it was the defendant who was in possession of the suit land. The said application has been dismissed by the impugned order, hence this appeal.
5. The learned lower appellate Court in para 6 of its order has given the reasons for dismissing the application. Para 6 of the order of the appellate Court reads as under:
6. I have gone through the certified copy of the judgment and it is clear that the learned trial Court had referred to number of copies of jamabandies and Khasra Girdawaries for the latest period which shows the possession of the plaintiff over the suit land. The learned trial Court had not accepted the plea of the defendant that he had become owner by way of adverse possession and there are no specific findings of the learned trial Court that the applicant was in possession of the suit land, though that possession may not be adverse. Once there are findings of the learned trial Court based upon oral and documentary evidence led by the parties, no relief of an injunction can be granted in favour of the applicant until and unless those findings are set-aside. Once these findings are as against the applicant, no prima facie case can be said to have been made out in favour of the applicant to the grant of relief of an injunction in his favour. The balance of convenience is in favour of the respondents who will also suffer an irreparable loss in case the relief prayed by the applicant is granted in his favour till disposal of the appeal.
6. In my opinion the findings of the learned lower appellate Court that once there are findings of a trial Court based upon oral and documentary evidence led by the parties, no relief or injunction can be granted in favour of the appellant until and unless findings are set aside, is not in consonance with law. Order 41 Rule 5 of the Code of Civil Procedure specifically empowers the appellate Court to pass an order staying the execution of a decree. It is well settled law that Order 39 Rules 1 and 2 C.P.C. applies to appeals also. The aggrieved party can argue before the appellate Court that the findings of the trial Court are either not based on evidence or are not in accordance with law. One cannot loose sight of the fact that in the present case it was a first appeal which was filed before the learned lower appellate Court. He has still to hear and decide the matter on merits. If the reasoning of the lower appellate Court is taken to its logical conclusion then in no case can an appellate Court stay the decree or judgment passed by the trial Court. This would render nugatory the provisions of Order 41 Rule 5 C.P.C. The parties can demonstrate before the appellate Court that they are entitled to grant of injunction or stay of decree. The appellate Court is not bound by the findings of the trial Court, even at this stage.
7. Without going into merits of the present case, on a legal question regarding the powers of an appellate Court to grant temporary injunction the reasoning of the lower appellate Court does not appear to be correct. The lower appellate Court has held that once there is finding of the trial Court against the appellant, no prima facie case can be said to have been made out in favour of the appellant. This is not a correct statement of law. In a given case a party may demonstrate to the appellate Court that the findings of the trial Court are irrational or on the face of the record are incorrect or are based on no evidence. There can be no such sweeping statement of law that in every case where there are findings of the trial Court no relief or injunction can be granted and prima facie case can never be said to have been made out in favour of the appellant unless the findings are set aside.
8. In the present case the main dispute is as to who is in actual possession of the suit land. The plaintiffs claim to be in possession as joint owners. The defendant asserts that he is in actual possession. The revenue record is in favour of the plaintiff. The findings of the trial Court are based mainly on the revenue record. The defendant may or may not be able to prove that the revenue record does not reflect the factual position. This is a question which has to be decided when the appeal is heard and disposed of on merits. In the meantime, the interest of both the parties must be secured by an appropriate interim order.
9. I have purposely not gone into the merits of the present case since whatever this Court may observe may prejudice the findings of the lower appellate Court. Therefore, without entering into any discussion as to who is in actual possession, it is ordered that both the parties are directed to maintain status quo qua nature and possession of the property in dispute pending disposal of the appeal before the learned District Judge, Bilaspur. Since the suit in the present case was filed in the year 1996, it would be in the interest of the parties to have the appeal decided at the earliest. The learned District Judge is requested to decide the case as early as possible and in any event not later than 31st December, 2005.
10. The appeal is, therefore, allowed, the order dated 29.4.2005 passed in C.M.P. No. 138 of 2005 is set aside and it is directed that both the parties shall maintain status quo qua nature and possession of the suit land. No order as to costs.