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1964 DIGILAW 107 (RAJ)

Dhanna v. Tej

1964-06-11

G.B.K.HOOJA

body1964
These two revision petitions have been filed by Dhanna and others r/o Mahand was Tankansia, Tehsil Phagi against Tej and others in one case, and Kalyan and others in the other case in respect of lands mentioned therein against the order of the Revenue Appellate Authority, Jaipur, dated 13.12.63 whereby he rejected their appeals against the order of the Asstt. Collector, Sambhar dated the 30th September, 1963. Briefly stated the facts are that the plaintiffs applicants filed suits for declaration and permanent injunction for the disputed lands in a representative capacity under O. 1, R. 8 of the C.P.C. alleging that the lands in dispute were used for grazing by the cattle of the village community. Simultaneously, the plaintiffs applicants moved applications under sec. 212 of the Rajasthan Tenancy Act requesting that the defendants—opposite parties be restrained from cultivating the lands in dispute. The trial Court granted ex-parte orders restraining the defendants opposite parties from cultivating the lands in dispute on 27.7.63. On 30.9.63, however, the trial Court vacated the orders issued on the 27th July, 1963. The applicants thereupon filed appeals before the Revenue Appellate Authority, Jaipur, and obtained stay orders on the 4th October, 1963 restraining the defendants opposite parties from cultivating the lands in dispute. On the applications of the defendants opposite parties, the appellate Court issued orders restraining the plaintiffs applicants from grazing their cattle on the disputed lands on the 14th October, 1963. On the 12th November, 1963, the date fixed for the hearing of the stay applications, the learned Revenue Appellate Authority vacated the stay orders issued on 4.10.63. When the appeals came up for hearing on the 13th December, 1963, the same were also rejected by the Revenue Appellate Authority by his orders now impugned before me through these revision petitions. I have heard the counsel for both the parties and have examined the record. It has been urged on behalf of the plaintiffs applicants that the lands in question have been only partly cultivated off and on from Smt. year 2009 to Smt. year 2020. If the defendants opposite parties are allowed to cultivate the lands it would result in the extinction of the pastures and the purpose of the suits would be defeated. It has been urged on behalf of the plaintiffs applicants that the lands in question have been only partly cultivated off and on from Smt. year 2009 to Smt. year 2020. If the defendants opposite parties are allowed to cultivate the lands it would result in the extinction of the pastures and the purpose of the suits would be defeated. It was argued by the learned counsel for the plaintiffs applicants that a suit for the declaration of pasture lands lay within the jurisdiction of the revenue courts and that the Sub-Divisional Officer had erred in holding that the suit was not maintainable. In this connection he cited Pancha vs. Har Govind, a Full Bench Ruling of the Board of Revenue reported in R.R.D. 1962 page 169 in which it was held that— "Sec. 91 of the Rajasthan Tenancy Act is the residuary section laying down that a suit may be brought for the declaration of all or any of the rights conferred by this Act and not otherwise provided for. When a land which is being used for the grazing of cattle has been recognised to be a pasture land vide sec. 5(28) and the Rules made thereunder as well as the Rules made under sec. 93 of the Rajasthan Land Revenue Act which lay down the procedure for the demarcation of the pasture land as well as the regulations of the rights of grazing, the right to have a land declared as a pasture land cannot but be deemed to be a right conferred by the Rajasthan Tenancy Act. Such a suit can, therefore, be properly entertained by the Revenue Court under Sec. 91 thereof." He also argued that in a case of permanent injunction, when there exists an apprehension that the opposite party will defeat the purpose of a suit by the cultivation of the land, the Court should use its inherent power to grant a temporary injunction and in this connection drew my attention to 1962 RRD page 273 wherein it was held that— "The provisions of Sec. 212 of the Tenancy Act are more restricted in effect than the combined provisions of O. 39, Rules 1 and 2. Therefore, if O. 39, Rules 1 and 2 combinedly do not exhaust the circumstances in which a temporary injunction could be granted, Sec. 212 of the Act is much less so. Therefore, if O. 39, Rules 1 and 2 combinedly do not exhaust the circumstances in which a temporary injunction could be granted, Sec. 212 of the Act is much less so. Sec. 212 of the Act comes into play only when injury to property is alleged. In a suit for permanent injunction an injury or invasion of the right is alleged. Therefore, for a party coming to the Court seeking relief under sec. 188 of the Act it would never be possible to make out a case for grant of a temporary injunction. But the very purpose of Sec. 188 of the Act would be defeated if the court having come to the conclusion that the invaded right should be protected from the commencement of the suit should find itself incompetent to make that order. Thus when an invasion of a right is pleaded and protection is sought against such invasion although sec. 212 of the Act may not be applicable, it would be a fit case for the grant of a temporary injunction under the inherent power of the Court." It was argued by him that the learned trial Court had erred in vacating the temporary injunction granted on 27th July, 1963 and that the order of the learned Revenue Appellate Authority also suffered from the same illegality. He reiterated that as the rights of the plaintiffs applicants had been invaded, these were fit cases for the grant of temporary injunctions adding that the entries in favour of the defendants opposite parties in the settlement records had manipulated and should not be relied upon in the face of the earlier entries in the Khasra Girdawari which indicated that these lands had been reserved for grazing by the cattle of the village. He also drew may attention to the order of the learned Revenue Appellate Authority in Dhanna etc. Vs. Kalyan etc. which is a very laconic order and has been issued on the basis of the order of the learned Revenue Appellate Authority in case No. 196/63 Dhanna etc. vs. Tej etc. The learned counsel for the defendants opposite parties on the other hand argued that the revision petitions did not attract any of the grounds mentioned in sec. 280 of the Rajasthan Tenancy Act. vs. Tej etc. The learned counsel for the defendants opposite parties on the other hand argued that the revision petitions did not attract any of the grounds mentioned in sec. 280 of the Rajasthan Tenancy Act. He stated that the revision petitions would be competent only if the lower courts had exercised jurisdiction not vested in them by law or had failed to exercise jurisdiction vested in them by law or had acted in the exercise of their jurisdiction illegally or with material irregularity. He stated that the cases now before the Court were not covered by any of these grounds. It was argued by him that the trial Court had not finally decided the question of jurisdiction as would be apparent from a perusal of its order. It is true that the question of lack of jurisdiction had been agitated before it, but the trial Court has not yet expressed a final opinion in the matter. It has been stated by the learned Asstt. Collector that to continue the temporary injunction pending the decision of the question of jurisdiction would be an undue interference with the rights of the defendants opposite parlies which were based on the entries on the settlement records. It has been further stated by him that he plaintiff applicants had been able to establish that they would suffer an irreparable loss if the temporary injunction was vacated. The learned counsel for the defendants opposite parties based is stand on the Khatedari Parcha dated Smt. 2011 and stated that the lands in dispute were not unoccupied lands and could not be reserved for grazing purposes although it might be granted that they had mostly remained uncultivated. He added that the defendants opposite parties enjoyed constructive occupation over those lands and the claim of the plaintiff applicants had no basis. It was argued by him that the grant of a temporary injunction was a discretionary remedy and the power should be sparingly used and that it was necessary for the party applying for temporary injunction to show that it would suffer an irreparable injury if the temporary injunction was not granted. The court should also see that the plaintiff had a prima facie case and that the comparative mischief or inconvenience which was likely to ensue from withholding the injunction would be greater than that which was likely to arise from granting it. The court should also see that the plaintiff had a prima facie case and that the comparative mischief or inconvenience which was likely to ensue from withholding the injunction would be greater than that which was likely to arise from granting it. He stated that the two lower Courts had not seen it fit to grant the relief sought for by the plaintiffs applicants and, therefore, unless some provision of law had been disregarded the discretion of the two lower Courts should not be interfered with. It was further argued by him that the defendants opposite-parties had been declared as Khatedar tenants, in the settlement records for the lands in dispute and could not be ejected from their holdings otherwise than in accordance with the provisions of the Rajasthan Tenancy Act by virtue of sec. 161 of the said Act. It was argued that the trial Courts judgment,which had been upheld by the Appellate Court was elaborate and it would not be appropriate for this Court to interfere with the judgment of the first appellate Court. In reply, the learned counsel for the plaintiffs-applicants referred to AIR 1937 All. 528, 1964 Supreme Court 497, and 1960 Cal. 582 and argued that the powers of this court regarding superintendence and supervision over lower courts could not be restricted. He argued that the present cases decided and called for a status quo to be maintained. He also stated that the defendants-opposite parties had not based their claims on earlier settlement records although several settlements had taken place in the past. I have carefully considered the arguments advanced by both the parties and I am of the view that the grant of temporary injunction is a discretionary remedy and before an interference is made with the rights of a party entered in the settlement records it is necessary for the party applying for temporary injunction to prove that the plaintiff has a prima facie case and that an irreparable injury would be caused if the temporary injunction is not granted. In the present cases the settlement records are in favour of the defendants-opposite-parties and no such danger exists. In the present cases the settlement records are in favour of the defendants-opposite-parties and no such danger exists. If, finally, the Court decides to grant the prayer of the plaintiffs-applicants in respect of the lands in dispute, the lands would revert to the plaintiffs-applicants without having sustained any permanent injury or diminution in utility even if the defendant opposite parties continue to cultivate them without any restriction. To restrict their right to cultivate would not only be tantamount to interference with their rights as at present claimed on the basis of the settlement record, but would also impinge upon the grow-more-food and the land-utilisation campaigns. As it is, the learned counsel for the plaintiffs-applicants has not been able to establish that any illegality was committed by the trial court or the learned Revenue Appellate Authority in vacating the temporary injunctions. It would certainly have been desirable if the order of the learned appellate authority in Dhanna etc. vs. Kalyan etc. had not been so laconic, but as it bears a reference to the order in Dhanna vs. Tej it may pass muster for the present purpose. In view of the above, I would be very chary to interfere in the claims of the defendants opposite-parties. Nevertheless, think that from the point of view of balance of convenience it would be desirable to allow the villagers to graze their cattle in the area not immediately required by the defendants-opposite parties for cultivation, as it is unlikely that they would be able to extend their cultivation much beyond what they have been able to do in the past. I, therefore, reject these revision petitions with the rider that the plaintiffs-applicants may be allowed to graze their cattle in the area not required by the defendants opposite parties for the purposes of cultivation until the suits are finally decided.