Grant of Temporary Injunction against co-tenureholder to raise illegal permanent constructions where suit for division of holding u/s 116 of U. P. Land Revenue Code 2006 is pending

It is apposite to reproduce Section 116 of the U. P Revenue Code 2006 ( Earlier S 176 of U.P. Z A & LR Act) which reads as under:
116. Suit for division of holding:

1. A bhumidhar may sue for the division of the holding of which he is a co-sharer.
2. In every such suit, the Court may also divide the trees, wells and other improvements existing on such holding but where such division is not possible, the trees, wells and other improvements aforesaid and valuation thereof shall be divided and adjusted in the manner prescribed.
3. One suit may be instituted for the division of more holdings than one where all the parties to the suit other than the [Gram Panchayat] are jointly interested in each of the holdings.
4. To every suit under this section, the [Gram Panchayat] concerned shall be made a party.

Before dealing with the issue of principles for grant of temporary injunction, it is necessary to understand the concept of co-tenureship in the case of agricultural lands. Until & unless there is division of the holding, as contemplated under section 116 of the U. P. Revenue Act, each co- tenure holder has legal right over every nook & corner of the holding limited to the share in the said holding.

It is therefore, all the more important, that if the co- tenure holder asserts that the other co- tenure holder is raising permanent constructions or dispossessing the plaintiff/applicant, damaging the nature of land, like carrying excavation etc., the Court should right away grant temporary injunction else the very purpose of the suit under section 116 of the U. P. Revenue Code shall be frustrated.

It would be relevant that grant of temporary injunction is governed by three cardinal principles: Prima Facie Case; Balance of Convenience; & Irreparable Injury. These three cardinal principles are to be applied in a proper perspective in the particular facts and circumstances of a case before deciding the grant of temporary injunction.

It would be trite to refer to Apex Court's judgment in Shanti Kumar Panda v. Shakuntala Devi (2004) 1 SCC 438 wherein it was expressly held thus:

At the stage of passing an interlocutory order such as on an application for the grant of ad interim injunction under Rule 1 or 2 of Order 39 of the CPC, the competent Court shall have to form its opinion on the availability of a prima facie case, the balance of convenience and the irreparable injury - the three pillars on which rests the foundation of any order of injunction.

The cardinal principles for grant of temporary injunction were spelt out by the Apex Court in Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719 wherein it was held thus:
Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in irreparable injury to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages.

The third condition also is that the balance of convenience must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted.If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.

Similarly, the Apex Court in the case of Shiv Kumar Chadha Etc. Etc vs Municipal Corporation of Delhi 1993 SCC (3) 161 held thus:

It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief according to the legal principles--ex debite justitiae. Before any such order is passed the Court must be satisfied that a strong prima-facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.

Prima Facie case:
The first and foremost requisite for grant of temporary injunction is that Applicant/Plaintiff should make out a prima facie case in support of the right claimed by him. The burden to prove and satisfy the court lies on the applicant/plaintiff to file relevant documents & lead evidence to satisfy the Court that he has a prima facie case in his favour. The applicant/plaintiff has to approach the Court with clean hands and state all material facts truly else the discretionary relief of temporary injunction would not be granted to him.

It would be trite to refer to Martin Burn Ltd vs. R.N.Banerjee 1958 AIR 79 wherein the Apex Court held as under-

The Labour Appellate Tribunal had to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent's service. A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed.

While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham and Carnatic Co., Ltd. Case 1953 AIR 47)

Principle of Irreparable Injury:
The applicant is required to satisfy the court that he will suffer irreparable injury if injunction is not granted. The Court is obligated to grant injunction only if it is satisfied that the Plaintiff/Applicant needs to be protected from the consequences of apprehended injury. The expression irreparable injury however does not mean that there should be no possibility of repairing the injury. It implies an injury which cannot be adequately compensated by damages.

In Best Sellers Retail India (P) Ltd. vs. Aditya Nirla Nuvo Ltd. (2012 ) 6 SCC 792, the Apex Court held that only prima facie case alone is not sufficient to grant injunction and the Court held thus:

“Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable.“

Balance of Convenience:
The Applicant is required to prove in application for grant of temporary injunction that there is the balance of convenience is in favour of the applicant i.e. the comparative mischief, hardship or inconvenience which is likely to be caused to the Applicant if the injunction is been refused. The balance of convenience comes into the picture when there is doubt as to the adequate remedies in damages available to either party or both.

Balance of convenience does not imply that the balance would be on one side and not in favour of the other. The Court must assess balance between the parties and take into consideration whether withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to consider the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted.

Ground for granting temporary injunction from court
Under Section 95 of CPC, it is specifically mentioned that the temporary injunction may be granted in any suit wherein the Court is satisfied that there are sufficient grounds to grant the temporary injunction.

The Court in proceedings under the U.P.Z.A. & L.R. Act is competent to grant temporary injunction under the provisions of CPC. It would be apposite to refer to Allahabad High Court in Darshan Singh And 3 Ors. Vs. Additional Commissioner (Judicial) Lucknow Division & Ors. decided on 16 September, 2015 wherein it was held thus:

So far as the question as to whether the concerning competent Court dealing with the proceedings under Section 176 of U.P.Z.A. & L.R. Act is empowered to grant temporary injunction/stay is concerned, it is to be noted that Section 341 of U.P.Z.A. & L.R. Act clearly provides that unless otherwise expressly provided by or under this Act provisions of Code of Civil Procedure, 1908 would be fully applicable.

The Court further explained thus:
Order XXXIX Rules 1 and 2 C.P.C. for convenience are reproduced herein below:

1. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by affidavit or otherwise?
   
   
   1. that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
       
   2. that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,
       
   3.  that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further orders.

It is incumbent on the Court to grant temporary injunction where suit for partition of holding under section 116 of the UP Revenue Code, 2006 is pending and one of the co- tenure holder alleges on oath that the other co- tenure holder is likely to dispossess him, or is raising illegal permanent constructions or is damaging the holding and thereby causing irreparable injury to the co- tenure holder.

All the three cardinal doctrines for the grant of temporary injunction co-exist in such cases i.e. prima facie case as the co-tenure holder is admittedly the co- owner, irreparable injury as permanent construction/ damage would un-disputingly cause irreparable injury and the element of 'balance of convenience' in such cases is always with the applicant/plaintiff.

Written By: Inder Chand Jain
M: 8279945021
Email: inderjain2007@rediffmail.com