Mohd. Yamin, J.
1. This Misc. Appeal has been directed against the order of learned Additional District Judge, Raisinghnagar dated 3-9-1998 by which he dismissed the application of the appellant under Order 39, Rules 1 and 2, CPC.
2. Briefly stated, plaintiff filed a suit for specific performance of contract against the defendants-respondents in relation to agreements executed on 16-1-1984, 15-6-1984 and 10-9-1984. Along with suit an application under Order 39, Rules 1 and 2, CPC was submitted praying that the defendants be restrained from interfering in the possession of the plaintiff. Chak No. 28 ML in Tehsil Raisinghnagar was in the khatedari of Nahar Singh. Nahar Singh died on 16-1-1984. Defendant Laxman Singh was his successor and entered into an agreement to sell the same agricultural land at the rate of Rs. 17,000/- per bigha in relation to murabba No. 36. This agreement was made on behalf of Jagir Singh defendant No. 4. The other agreement relating to the remaining part of land was executed by him and an amount of Rs. 51,000/- was paid in advance. It was agreed that the
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possession of die land would be given on Baisakh-1 Samvat 2041 and it was also agreed that the registered sale deed could be executed on 4-6-1984. The defendant could not execute the sale deed till this date and ultimately this date was extended to 15-6-1984 as agreed between the parties. On 4-6-1984 defendant No. 1 told the plaintiff that the land was in the name of Jagsir Singh. Said Jagsir Singh had also come and he executed the agreement and put his signatures on it. Ultimately the said registration was to be done by 15-6-1984 but in the' meantime Government of Rajasthan by a notification is-sued instructions thai the land could be sold only with the permission of Colonisation Department. Thereupon the defendants agreed that the said permission will be obtained and thereafter registered sale deed would be executed within seven days. This was incorporated in the agreement on 15-6-1984. Later on a sum of Rs. 39,000/-was paid to the defendants on 10-9-1984. In all Rs. 90,000/- was paid by the plaintiff-appellant. But ultimately registered sale deed could not be executed and on 1-5-1997 defendant refused to perform his part of contract and intended to sell the said land to someone else.
3. The case of the defendants before the trial Court was that Nahar Singh during his lifetime bequeathed on 29-3-1976 by Will some land detailed in the reply to Jagsir Singh and Shiv Raj Singh who are his grandsons. Consequently the land was transferred in the name of these two respondents and jamabandi was also prepared in their names. Thus, it were they who were the khatedar tenants of this land. Agreement dated 16-1-1984 was denied and it was also denied that some advance money was taken. It was pleaded that the agreement was forged and without consideration. The endorsement on the back of agreement were also denied. It was pleaded that defendant-respondent Laxman Singh had no right or power to alienate the property of his minor sons. The agreement was void and that the land was not in possession of the plaintiff-appellant. Learned Additional District Judge, after hearing both the parties, dismissed the application.
4. Learned Counsel for the appellant submitted that the possession of the land was with the plaintiff and that plaintiff has a prima facie case, balance of convenience and point of irreparable loss in his favour.
5. An application under Order 41, Rule 27, CPC has also been submitted on behalf of the appellant-plaintiff with two documents out of which one is a birth certificate of Shivraj Singh, respondent No. 3, issued by the Head Master of Secondary School, Ridmalsar dated 24-9-1998 to controvert that Shivraj Singh was not a minor. The other document is a slip of Irrigation Department in the name of Pirtha Singh to show that the irrigation of the land was being done by plaintiff and he is in possession. This application has been contested by the counsel for the respondents. Firstly he submitted that Order 41, Rule 27, CPC would not apply to appeals under Order 43, Rule 1, CPC. But when his attention was drawn to Order 43, Rule 2, CPC which provides that the Rules of Order 41 shall apply so far as may be to appeals from orders, then he submitted that on merits the application is not maintainable because the documents were not submitted before the trial Court and it did not refuse to admit them in evidence.
6. Counsel for the appellant submitted that the appellate Court, if it requires any document to be produced, to enable it to pronounce judgment or for any substantial cause, it may allow such document to be produced. Therefore, he has submitted that these documents be taken on record as they are necessary to be examined to enable to pronounce the judgment. I do not agree with the learned Counsel on this point because during the arguments it transpired that the counsel for the respondents in a feeble voice admitted that the appellant-plaintiff was in possession of the land in dispute. The certificate of date of birth of Shiv Raj Singh could have been produced before the Court below but it was not done and no reason is coming forth for it. I, therefore, reject this application.
7. Now on merits. The plaintiff-appellant wants relief that the defendants be restrained from interfering in his possession. Counsel for the respondents submitted that no jurisdictional error has been committed by the learned trial Judge by refusing to grant temporary injunction and that the appellate Court should be slow in interfering the discretionary order of the trial Court as held in Smt. Vimla Devi Vs. Jang Bahadur, He also submitted that as per provisions of the Rajasthan Colonisation Act the sale deed could not be executed without permission and that the land was given to the respondents Nos. 2 and 3 by their grandfather by a Will and that Laxman Singh was not its owner. He submitted that the allegations of the defendants are that the agreements are forged. A copy of the Will was submitted before the trial Judge which showed that the land was bequeathed to Jasgir Singh and Shiv Raj Singh by Nahar Singh in equal shares. This Will was executed much before the alleged agreement. The plaintiff himself averred that Shiv Raj Singh was a minor at the time of execution of agreement, therefore, unless permission from the competent Court was obtained u/s 8 of the Hindu Minority and Guardianship Act, 1956, the agreement/sale deed could not have been executed by Laxman Singh who is the father of Jasgir Singh and Shiv Raj Singh, as such the agreement was enforceable,
8. So far as permission from the Colonisation Department is concerned, it was urged that no sanction was required after 22-4-1991. But in the facts and circumstances of this case it is said that the land did not belong to Laxman Singh. Instead it was under the tenancy of Jasgir Singh and Shiv Raj Singh who did not obtain any permission from the Court u/s 8 of the Hindu Minority and Guardianship Act, 1956. He could not have transferred/entered into the agreement on behalf of the minors.
9. Then the learned trial Judge found that the material facts were suppressed by the plaintiff. He observed so in his judgment. When it is so, the discretionary relief of granting injunction in such a matter could not be granted.
10. The question of limitation was also taken into consideration by learned trial Judge and he found that the suit was prima facie not within limitation. This is a triable question in the facts and circumstances of this case. But I do not find anything like absurdity in the order of learned Additional District Judge. There was some confusion about the possession at the time when the matter was decided by learned trial Court. But now when the counsel for the respondents admits that the appellant is in possession and that a revenue suit is pending before the competent Court, the confusion is dispelled. The case of the plaintiff right from the very beginning is that the land was in his possession for last 13 years and he has by spending an amount of Rs. 3 lacs made improvements in it. Though the case of the defendants in the written statement is that the land was in their possession and they were cultivating it, but they are not able to prove it even prima facie.
11. In Smt. Vimla Devi Vs. Jang Bahadur, it has been observed by this Court that the order refusing temporary injunction is of a discretionary character. Ordinarily Court of appeal will not interfere with the exercise of discretion by the trial Court and substitute for it its own discretion. The interference with the discretionary order, however, may be justified if the lower Court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all the relevant records. The mere possibility of the appellate Court coming to a different conclusion on the same facts and evidence will also not justify interference. No such error has been shown by the counsel for the appellant in the order of learned trial Judge, therefore, no interference is called for in the order.
12. Learned Counsel then submitted that now when the counsel for the respondents is admitting that the plaintiff was in possession, it means that the plaintiff has a prima facie case. Therefore, he has submitted that since his possession is interfered with by the respondents, they may be injunct not to do so. What is a prima facie case? In Smt. Vimla Devi Vs. Jang Bahadur, it has been held that a prima facie implies the probability of the plaintiff obtaining a relief on the materials placed before the Court at that stage. Every piece of evidence produced by either party has to be taken into consideration in deciding the existence of a prima facie case to justify issuance of a temporary injunction. True that the defendants counsel has admitted that the plaintiff is in possession but plaintiff has to show overt acts of the defendants by which they might have interfered the possession of the plaintiff There is general allegation in para No. 5 of the affidavit of the plaintiff that the defendants an threatening to take possession of the land and to sell the same to other persons. There is a counter affidavit of Shiv Raj Singh. It is settled law thai when there is oath against oath, burden lies on the person who alleges a particular fact. This burden is not discharged by plaintiff-appellant. So by mere general allegation in the affidavit, it cannot be held even prima facie that the defendants even threatened to take possession of the disputed land.
13. It is something different whether the specific performance of the contract can be done or not but plaintiff was to prove prima facie that his possession was being threatened otherwise than the due process of law. This has not been proved and as such trial Court has not committed any error in refusing injunction.
14. In view of above discussion, there is no force in this appeal and it is hereby dismissed. No order as to costs.