@JUDGMENTTAG-ORDER
Dhavle, J.@mdashThis Rule must be made absolute. It is directed against the issue of a temporary injunction pending the disposal of a suit for a permanent injunction to restrain the defendants from "dispossessing the plaintiffs from their legitimate interests" in a certain mokarrari tenure and from taking out the dakhal dehani in the certificate case in which that mokarrari tenure was brought to sale and purchased by the original defendant 1. The certificate sale, I am told, took place on 15th March 1937, the mokarrari which carries an annual rent of over Rs. 2000 being sold for Rs. 5300. On 11th May 1937, there was an application u/s 20, Public Demands Recovery Act, by some of the sons of some of the judgment-debtors that some minors had not been properly impleaded in those certificate proceedings. This application ended in a compromise, so I am informed, according to which the sale was to be set aside if the judgment-debtors paid a certain sum by 31st August 1937, but was other, wise to stand and no objection was to be made by the judgment-debtors. The money was not paid as promised, and on 1st September 1937, the sale was confirmed. On 3rd September, the auction purchaser applied for the delivery of the sale certificate to him and for dakhal dehani. Next day the sale certificate was signed and dakhal dehani issued.
2. On the same date a letter was received, later on, from the Munsif of the Second Court of Gaya saying that a temporary injunction had issued against defendant 1 in respect of his taking possession of the interest of the plaintiffs in the suit. The certificate officer there, upon informed the Munsif of the Second Court of Gaya that dakhal dehani had already issued and that the Sub-Divisional Officer of Jehanabad, in whose jurisdiction the mokarrari lay, was being written to.
3. The case of the petitioner before me is that possession was actually delivered on 5th September, under this dakhal dehani, and the Sub-Divisional Officer of Jehanabad replied on 8th September that dakhal dehani had already been effected. Two days after this the original defendant 1 sold this property to the present defendant 1, the petitioner before me. The suit in which the temporary injunction had been issued was a suit, as I have already stated, for the issue of a permanent injunction, and it, was brought by some members of the family of the certificate debtors on the footing that the minor plaintiffs had been impleaded in the certificate proceedings as majors, so that the certificate sale could not affect their shares, and that the other plaintiffs being younger sons were not represented in the certificate proceedings at all, so that their shares were also not affected by those proceedings. The learned Munsif held on a perusal of the pleadings that there was a substantial question to be decided in the case.
4. He held further that if the temporary injunction applied for were refused, the ultimate prayer for a permanent injunction would become nugatory. He held thirdly that a refusal to grant a temporary injunction may lead to a multiplicity of proceedings as in the event of the plaintiffs'' success they would have to start proceedings for delivery of possession and for recovery of mesne profits, etc. He therefore held that the balance of convenience was in the plaintiffs'' favour and that the status quo ought to be maintained until the disposal of the suit. The lower Appellate Court upheld the order after dealing with two points only. The learned District Judge was of opinion that in respect of the minor plaintiffs the certificate proceeding was not vitiated by the defect that they were originally described as majors, since a correction was made and the parties in question properly dealt with as minors in the course of the proceedings and before the sale.
5. But as regards the other plaintiffs he held on the authority in Raja Koer v. Ganga Singh 13 C.W.N. 750 that the principle of representation does not apply to certificate proceedings, and that therefore the interest of these plaintiffs was not affected by the certificate proceedings. This point has been contested before me on the authority in
6. The view of the certificate officer was, it appears, not adopted by the Revenue Court to which an appeal was preferred against the order of the certificate officer on the application u/s 29, Public Demands Recovery Act. The learned Munsif speaks of the defendants having "in the meantime taken out dakhal dehani through the certificate Court and also got it served in hot haste." After referring to the opinion of the certificate officer doubting the correctness of the report of the peon about the service of the writ of deli, very of possession, the learned Munsif observes that the defendant "made this haste presumably upon knowing about the plaintiffs'' suit and prayer for temporary injunction;" and he adds that in the circumstances the Court will not allow itself to be
circumvented by the suspicious service of delivery of possession.'' Hence defendants are restrained from taking actual possession of the mokarrari interest of the plaintiffs until further orders.
7. What the learned Munsif ''means by ''actual possession'' in the circumstances of this case it is not very easy to see. The dakhal dehani, so far as it was effected, must have been effected, having regard to the nature of the property, in the manner laid down in Order 21, Rule 96. When the learned Munsif speaks of the Court not allowing itself to be circumvented by the suspicious service of delivery of possession, he is employing language which seems to be rather inconsistent with itself. If the Court is circumvented, there must have been actual service; and if there was actual service, the position is not improved by speaking of the service as suspicious. He gives a reason for the defendant making haste, namely that he must have known of the plaintiffs'' suit and prayer for temporary injunction; but he does not notice the haste displayed by the plaintiffs in bringing a suit for a permanent injunction at Gaya while the property obviously and admittedly lay in the jurisdiction of the Jehanabad Munsif. Mr. Sarjoo Prasad has urged that as the suit was for the issue of a permanent injunction, the plaintiffs were within their rights in bringing the suit in Gaya in which juris-diction the defendant resided. But the suit was a suit for a permanent injunction which could only be of use if dakhal dehani had not already been effected. The learned Munsif certainly has not found that dakhal dehani had not been effected. On the contrary, he speaks of the defendant getting the dakhal dehani served in hot haste and circumventing the Court in which the suit was brought.
8. It has been suggested that the learned Munsif was probably thinking of the provisional order passed by him in respect of the temporary injunction when he spoke of the Court being circumvented. But in any case we know that the defendant took out dakhal dehani from the certificate officer before the latter received any communication from the learned Munsif at all. The lower Appellate Court also has not arrived at the conclusion on the materials at present available that there was no dakhal dehani served in fact. If in these circumstances the prayer for a permanent injunction will become nugatory on the refusal of a temporary injunction, that is not a point in favour of the plaintiffs. They need not have brought the suit in this form, and it may still be open to them to amend their plaint and ask for recovery of possession, though it may be that this is what they wished to-avoid if only because that would have meant some delay as the suit (if within the pecuniary jurisdiction of a Munsif) would have had to be instituted in Jehanabad. As to the multiplicity of proceedings which the learned Munsif spoke of, while it is true that on the one hand in the event of the plaintiffs'' success, there will have to be proceedings for delivery of possession and recovery of mesne profits, we must not on the other hand lose sight of the fact that defendant 1 as auction-purchaser is presently liable to pay the annual rent of over Rs. 2000 to the superior landlord as against the relief of a permanent injunction which the plaintiffs themselves have valued at about Rs. 1100.
9. There was also a question of jurisdiction raised which the lower Appellate Court referred to and disposed of on the ground that it involved questions of fact and did not appear to have been raised in the trial Court. But here again prima facie the suit related to immovable property in Jehanabad and it may be doubted whether the'' plaintiffs'' share of the property, on the facts stated by Mr. Sarjoo Prasad, was within the competence of any Munsif to try however much it may be open to a plaintiff to value the relief he asks for, especially a relief in the nature of a permanent injunction, as he chooses, subject only to the power of the Court to prevent an arbitrary under-valuation or over-valuation. I cannot fully deal with the question of pecuniary or local jurisdiction in the absence of definite findings on the questions of fact involved but I am quite clear that there were no materials placed before the lower Courts on which they could hold, or did in fact hold, that dakhal dehani had not yet been effected, so as to make it competent to them to issue a temporary injunction against the defendant. No injunction, temporary or permanent, can lie, it need hardly be said, against a dakhal dehani that has already been effected; nor would the balance of convenience in a case like the present seem by any means to lie in the plaintiffs'' favour in the face of the liability of the auction, purchaser or his successor to pay to the superior landlord a yearly rent much in excess of the figure at which the plaintiffs have valued their suit.
10. The application is accordingly allowed with costs, and the temporary injunction allowed by the trial Court and upheld by the lower Appellate Court set aside. Hearing fee three gold mohurs.
