Sangeeta Chandra, J. - Heard learned counsel for the petitioner and perused the orders impugned.

2. The petitioner is aggrieved by the order dated 18.9.2019 passed by the Civil Judge (Junior Division), Shravasti, rejecting the application of the petitioner for temporary injunction in Regular Suit No.36/2017 (Matawar Prasad vs. Jagdish and others) and the order dated 13.1.2020 passed by the District Judge, Shrawasti in Misc. Civil Appeal No.22/2019.

3. It is the case of the petitioner that he filed a regular suit for permanent injunction against the private respondents, who are the Gram Pradhan and his two brothers saying that the petitioner has a house situated in village Parsiya and his house is in two parts; one part of the house is used for residence and the remaining is used for Ghari, Bhusaila and Charani for cattle, where he has also installed his machinery. In between two parts of the residential houses and Bhusaila, there is a sahan land, which is also used as ingress and egress of tractor and trolley belonging to the petitioner. The sahan land is now being tried to be converted into public raasta by the respondent nos.3 to 5 due to panchayat election rivalry. The sahan land is marked as A, B, C and D in the map annexed with the plaint and that the respondents no.3 to 5 be restrained from using the sahan land as raasta and making it into the kharanja marg. On the case being registered and notice being issued, respondent nos.3 to 5 filed their objection to the application for temporary injunction, but in the meantime, the trial court had also passed an ex-parte interim order on the date of registration of the suit i.e. on 17.1.2017 that the parties shall maintain status quo over the land in question. After written statement and objections were filed, the petitioner filed his replication also. An Amin Commissioner was appointed by the learned trial court on 17.1.2017 on an application moved by the petitioner and the Amin Commissioner visited the land in question on 18.4.2017 and submitted his report. The petitioner filed his objection to the report of the Amin Commissioner. The learned trial court while deciding the application for temporary injunction Paper no.6A by the impugned order dated 18.9.2019, has rejected the petitioners apprehension on the ground of failure to make out a prima facie case. The petitioner filed an appeal, which has also been rejected.

4. It has been pointed out that during the pendency of appeal, an interim order of maintenance of status quo had been granted by the appellate court, which has now merged with the order, rejecting the appeal. Hence the need arose to file this petition.

5. It has been submitted by the learned counsel for the petitioner that the learned trial court while passing the order impugned has misinterpreted the Amins report and has taken the raasta mentioned in the revenue records as Gata no.580 to be the land on which the petitioners sahan is situated, whereas the petitioners house is situated on Abadi Gata no.669 and not on Gata no.580.

6. It has also been submitted by the learned counsel for the petitioner that while rejecting the application for temporary injunction, the learned trial court has failed to appreciate the principles for grant of temporary injunction and has conducted a mini trial, giving a finding against the petitioner.

7. Learned counsel for the petitioner has submitted on the basis of judgment rendered in Kendriya Karmchari Sahkari Grih Nirman Samiti Ltd. vs. New Okhla Industrial Development Authority, (2009) 27 LCD 185 that when the question of immovable property is involved, the trial court should have passed an order to maintain status quo. Learned counsel for the petitioner says that rejection of the application for temporary injunction may lead to irreparable loss being caused to the petitioner. He has referred to Para-9 of the judgment to buttress his argument.

8. Learned counsel for the petitioner has also placed reliance upon the judgment in Anupam Sahkari Avas Samiti Ltd. vs. Additional District Judge, Lucknow,2006 24 LCD 137, and has referred to Para-17 of the judgment to say that mini trial should not be conducted while considering the application for temporary injunction by the trial court.

9. Learned counsel for the petitioner has also placed reliance upon the judgment and order dated 17.2.2014 passed in Writ Petition No.962 (MS) of 2014 (Badadeen and another vs. Additional District Judge, Court no.3, Bahraich and others) to say that there is a difference between the prima facie case and prima facie title, which the trial court has failed to appreciate while considering the application for temporary injunction.

10. This Court has perused the impugned orders passed by the trial court, where the trial court after mentioning the facts as mentioned in the plaint has also mentioned the facts as mentioned in the objections to the application Paper no.6C by the defendants registered as Paper no.21A. The defendants had stated that the land in question is a public raasta on which, under the village development plan, kharanja has to be laid and not only the petitioner house is situated on the northern side of such raasta, but that of others including the defendants are situated on the northern side of such raasta. A mention has also been made of the fact that objection has been raised regarding non joinder of necessary party under Order 1 Rule 8 CPC as the petitioner in effect wants the Court to declare pubic raasta as his sahan. The Gram Panchayat is a necessary party and has not been impleaded. The learned trial court thereafter has considered the arguments raised by the leaned counsel for the plaintiffs that the land in question had been left by the plaintiffs themselves to be used as sahan and the Amin Commissioner had found it being used by the people but such people were the family members of the petitioner himself and not the members of general public. However it has rejected such argument by going through the Amin Commissioners report which mentioned clearly that the land in dispute which the plaintiff was referring to as his sahan was being used by several people for going from the road to the pond on the other side. The revenue records also show Plot no.580 to be public raasta, therefore, no prima facie case was made out in favour of the plaintiff and since there was no prima facie case, there was no question of balance of convenience in favour of the plaintiff and irreparable loss being cause to the plaintiff.

11. The learned trial court has also considered the argument raised by the learned counsel for the plaintiff that the land in question is 15 feet wide on the western side and 17 feet wide on the eastern side, therefore, although it is 147 feet in length, it cannot be considered as public raasta, as for public raasta, both sides must be equal, but has observed that such argument cannot be appreciated as in villages, there is no planned development and, therefore, there may be a difference on the western and eastern side of the land in question, but from the nature of its measurements, it may still be considered to be a public raasta.

12. Learned counsel for the petitioner has stated that the petitioner had taken this ground in appeal that the land in question is situated at Plot no.669 and not on Plot no.580, which is marked as public way in revenue records, but it has not been appreciated correctly by the learned trial court.

13. The petitioners argument regarding the land in question being situated in Abadi Gata no.669 and not in Gata no.580 recorded as public raasta has also been considered by the appellate court and it has rejected the same by saying that although the petitioner may have some case with regard to declaration of the land in dispute being situated at Gata nos.669 and not Gata no.580, but the fact that the revenue entries showed that it is part of Plot no.580 cannot be overlooked and the Civil Court cannot entertain any dispute with regard to revenue entries. If the appellant had any dispute regarding wrong marking of Plot no.580 in the revenue map of the village concerned, then he may approach the competent court for correction of the same.

14. This Court finds that whether the land in dispute is situated in Plot no.669 which is Abadi plot or Plot no.580, which is marked as public way in the revenue records and village map, is a question to be decided on the basis of the pleadings and evidence to be led before the appropriate court.

15. This Court has considered the order passed by the learned trial court, rejecting the application for temporary injunction and also the order passed by the appellate court and finds that there is a detailed consideration of the submissions made and also an appreciation of the revenue records and the report of Amin Commissioner. It cannot be said that the orders have been passed without application of mind to the case setup by the petitioner.

16. With regard to the illegality in the orders passed, as submitted by the learned counsel for the petitioner that the trial court has conducted a mini trial and has failed to appreciate the difference between the prima facie case and prima facie title, this Court finds that the argument can also be raised the other way round. From a bare perusal of the Amin Commissioners report and the map that the petitioner had submitted along with the plaint and the map submitted by the defendants in their objections and written statement, it is evident that the land in question is 147 feet long and 15 to 17 feet wide on the western and eastern side respectively and not only the petitioners house, Ghari, Bhusaila and Charani opened on the same but that of other houses also opened on the same. Therefore, it appears that the learned trial court and the appellate court did not commit any illegality in rejecting the application for temporary injunction as any temporary injunction in such matters would also affect the right of all others in the village without they being made a party or without the sitting Gram Panchayat being made a party. The contesting respondents/defendants have been impleaded by the petitioner in their personal capacity, although one of them is the Gram Pradhan and in the written statement it has come out that the land in question has been identified in the village development plan for laying kharanja i.e. brick soiling.

17. Now this Court considers the judgments cited by the learned counsel for the petitioner.

18. In the first case i.e. in Kendriya Karmchari Sahkari Grih Nirman Samiti Ltd. (supra), the petitioner was a Cooperative Housing Society which had allegedly purchased 292 bighas of land situated in village Chhalera of District Gautam Budh Nagar, commonly known as NOIDA, U.P. for housing purposes from the funds contributed by its members before acquisition by the State Government for establishment of NOIDA. After acquisition NOIDA wanted to allot the plots to the members of the Society in its planned developed sectors. NOIDA directed the Society to furnish list of bona fide members and also directed to deposit 40% of the premium. The plaintiff petitioner did so and in between 1994 to 1996, a total sum of Rs.36 crores had been deposited. The allotment of certain land was done by NOIDA initially but was later on cancelled on grounds of misrepresentation. The Society filed its civil suit along with an application for temporary injunction. The learned trial court held that by issuance of allotment letter, no legal right had been created in respect of the land in favour of the plaintiff Society. The application for temporary injunction was rejected by the trial court on 30.5.2006, which was appealed in a First Appeal From Order before this Court, which was being considered by the Division Bench.

The Division Bench came to the conclusion on the basis of evidence led that the trial court had proceeded in a matter as if it was going to finally conclude the hearing of a suit and held that when there is a question of title involved and decision is yet to be taken on the basis of material evidence, no final conclusion can be drawn. Learned trial court failed to appreciate in spite of cancellation of allotment. NOIDA had not returned a huge amount of 36 crores that the Society had deposited and NOIDA was enjoying its interest till the date of hearing of First Appeal by this Court. In such case, if interim injunction was refused only because of cancellation of allotment while the other Societies standing on equal footing had already got the allotment, it would act against the interest of the plaintiff. If today the land, which was allotted to the society, was given to a third party, right of such third party will accrue. In such circumstances, efforts of the appellant would be futile. The Division Bench made such observations in a First Appeal From Order and not in a petition under Article 227 of the Constitution of India.

19. In Anupam Sahkari Avas Samiti Ltd. (supra), learned counsel for the petitioner has placed reliance upon Para-17. However, Para 17 cannot be read without reference to the fact in which this court made the observation. The petitioner was a housing society which had entered into a registered agreement of sale for a plot of land with private persons. Some part of land was sold of by a private person to the Society and the name of the Society was mutated in the revenue records. Later on private persons executed an unregistered sale deed in favour of another cooperative housing society for the rest of the land and the private housing society transferred the land to a third society, respondent no.2 through a registered sale deed. The third society tried to encroach upon the land of the petitioner society and the petitioner filed a suit along with an application for temporary injunction. The trial court had granted ex-parte temporary injunction directing the parties to maintain status quo and also directing the defendants to file their written statements. Feeling aggrieved by the order passed by the trial court an appeal was filed by the defendant which was allowed by the appellate court and therefore, petition was filed under Article 227 by the plaintiff praying for setting aside the order passed by the appellate court. This Court considered the fact that the right of the defendant had arisen on the basis of an unregistered sale deed.

It referred to the judgment rendered by the Supreme Court in Manohar Lal Chopra vs. Rai Bahadur Rao Seth Hiralal, (1962) AIR SC 527, where it was held that the power of the competent court does not only flow from Order 39 Rule 1 and 2 CPC but also Section 151 of the CPC while relates to inherent power to make necessary the order in the interest of justice. The court can exercise its inherent jurisdiction under Section 151 CPC when it considers it necessary in the ends of justice to so do. It also referred to the judgment of the Supreme Court in Anand Prasad Agarwalla where the Supreme Court held that it may not be appropriate to hold a mini trial at the grant of temporary injunction. The plaintiff had approached the court on the basis of sale certificate issued in an auction sale. A presumption arose in favour of such person and unless the sale certificate was set aside or declared to be a nullity, it remained legally valid and in force and it could not be said that no right could be derived from such certificate and made the observation in Para-17 with regard to the claim of the petitioner before it.

20. In Babadeen (supra), this Court considered the three ingredients for grant of temporary injunction under Order 39 Rule 1 and 2 CPC i.e. prima facie case, balance of convenience and irreparable loss. In this judgment again this Court held that ultimately it is for the court to decide whether in the facts and circumstances of the case it is necessary to protect the property which is subject matter of suit. Also it observed that if a party fails to prove prima facie case to go for trial, it is not open to the court to grant interim injunction in his favour even if he made out a case for balance of convenience being in his favour and that he would suffer irreparable loss or injury if no injunction order is granted.

21. This Court finds from the orders impugned that no final finding has been arrived at with regard to the title or the claim of the petitioner to the land in dispute to be used by him as sahan. Only a prima facie finding has been recorded that in the revenue records, Plot no.580 has been recorded as raasta and in the Amin Commissioners report also, it was found to be used by other persons as well and that the houses of other persons were opening there on the disputed piece of land.

22. This Court therefore, does not find any legal infirmity in the orders impugned. It is only one of the possible views that can be taken by the trial court and the appellate court and this Court under Article 227 enjoys a very limited jurisdiction to interfere in the orders passed by the subordinate courts.

23. The writ petition is dismissed. No order as to costs.

24. It is, however, clarified that the finding recorded by this Court in this order shall not prejudice the case of the petitioner, which is yet to be proved on the basis of evidence led by both the parties.