Hira v. Board of Revenue for Rajasthan — 1966 DIGILAW 75 (RAJ)

DAVE, C.J.—This writ application has been filed by the petitioners under Art. 226 of the Constitution of India, for challenging the validity of the order of the Revenue Board dated 10.9.63 (Ex. 4), whereby they have been punished for civil contempt on account of disobedience of the Revenue Boards order dated 12.10.62 which was confirmed on 31.10.62. 2. The facts giving rise to it are as follows: Shokin Shah, who is respondent No. 2 before this Court filed a suit in the Court of the Assistant Collector, Kishangarh, for permanent injunction. 3. It was averred by him that in village Sargaon, Tehsil Kishangarh he was cultivating field khasra No. 112 as a tenant for a number of years. About a month before the date of the suit which was filed on 11.1.62, when he went to his field in order to cultivate it, the defendants restrained him and did not permit him to plough it. It was alleged that the defendants wanted to take possession of the field forcibly and so it was prayed that they should be restrained by a permanent injunction from cultivating the field or causing any obstruction to the plaintiff. 4. In reply it was submitted by the defendants that one Smt. Padam Kurt war widow of Shri Shyam Singh Mohnot of Kishangarh was Khatedar of the land in dispute. She had transferred her rights in favour of defendants Nos. 1 to 4, that is, Hira, Moti, Dhanna and Bodu on 29.11.61 for a cash consideration of Rs. 1,000/-and placed them in possession thereof. Thereafter they were in possession of the field and a suit for permanent injunction was, in the circumstances, not maintainable. The plaintiff presented an application for temporary injunction during the pendency of the suit. That application was also stoutly opposed by the defendants on 16.2.62. This application for temporary injunction was dismissed by the trial court. Aggrieved by that order the plaintiff filed an appeal which was also dismissed by the Revenue Appellate Authority on 31.7.62. The plaintiff then filed a revision application before the Board of Revenue on 11.10.62. It came for disposal before a learned Single Member of the Board on 12-30-62. It may be noted here that by that, time no notice was given of this application to the respondents. The plaintiff then filed a revision application before the Board of Revenue on 11.10.62. It came for disposal before a learned Single Member of the Board on 12-30-62. It may be noted here that by that, time no notice was given of this application to the respondents. The learned Member passed an ex parte interim order that a letter may be written to the Tehsildar Kishangarh who may direct the respondents not to interfere with the plaintiffs possession till 31.10.62 which was fixed for hearing of the application. The non-petitioners were also given notice to show cause why the interim order should not be confirmed. On 31.10.62, the Court confirmed the said order and directed the defendant-respondent not to interfere with the plaintiffs possession or his cultivation till the disposal of the revision application. On 10.9.63, the learned Members of a Division Bench of the Revenue Board allowed the revision petition, reversed the orders of the subordinate courts and ordered that the applicant may be granted temporary injunction. 5. It appears that on 23.10.62, 23.2.63 and 7.3.63, the plaintiff moved three applications before the Board of Revenue complaining that inspite of the order of the Board dated 12.10.62, restraining the respondents from interfering with the plaintiffs possession, they had not only cultivated and sowed the field but even reaped the harvest. The learned Members thereupon directed the Tehsildar, Kishangarh, to make an enquiry and submit a report. The Tehsildar submitted a report on 3.4.63 that the defendants had disregarded the injunction of the Revenue Board and circumvented it by allowing Uda and Ramnath to reap the harvest. The learned Members of the Board then heard the application for contempt. They came to the conclusion that the respondents had disobeyed their order dated 12.10.62 and, therefore, it was ordered that their property, as per list submitted by the petitioner, be attached by the trial court and kept under attachment till the pending suit was disposed of. It was further ordered that the respondents be detained in civil prison for one month from the date of their arrest. It is the validity of this order which has been challenged by this writ petition. 6. It was further ordered that the respondents be detained in civil prison for one month from the date of their arrest. It is the validity of this order which has been challenged by this writ petition. 6. It is urged by learned counsel for the petitioners that the trial court had dismissed the application of respondent No. 2 for temporary injunction since it could not make up its mind and arrive at a firm finding if the plaintiff-respondent was in possession of the suit property before the suit was instituted. He proceeds to say that the Appellate Authority also did not find in favour of the plaintiff-respondent if he was in possession of the property. It is further contended that the learned Single Member of the Board passed the interim order dated 12.10.62 against his clients without ascertaining if the plaintiff was in possession of the disputed property. Even on 31.10.62, when the said order was confirmed, the learned Member did not record a clear finding if the plaintiff was in possession of the disputed property. Similarly, when the revision application was allowed on 10.9.63 the learned Members did not refer to any evidence and did not record a clear finding if it was the plaintiff or the defen-dants who were in possession of the land when the suit was filed or when this order dated 10.9.63 was passed. They formed a wrong impression from the order of the trial court that it had given a finding in favour of the plaintiff about his possession. It is strenuously argued that the plaintiff was not in possession of the disputed land on the date of the suit. On the other hand, the petitioners had got possession of the property from Smt. Padam Kunwar and it was definitely urged by them in the trial court that they had cultivated the disputed field in Samvat year 2018 and even deposited the rent for that year in the Treasury. The application for temporary injunction was contested by them on the ground that they were in actual possession of the field and that they had already cultivated it. The application for temporary injunction was contested by them on the ground that they were in actual possession of the field and that they had already cultivated it. In the face of these averments it was incumbent upon the learned Members of the Board to give a firm finding on the basis of evidence, which ought to have been recorded, whether the plaintiff was in possession of the disputed property before he filed the application for temporary injunction. It is urged that since the defendants were already in possession of the disputed field before the application for temporary injunction was filed, they could not be dispossessed by passing an injunction and that even if it be held that the petitioners continued in possession of the field inspite of the injunction, it could not be said that they had disobeyed a lawful order of the Court. In the alternative it is contended that none of the petitioners committed any disobedience of the order of the Revenue Board. 7. It is pointed out that the field, Khasra No. 112, was transferred by Smt. Padam Kunwar not only in favour of petitioners Nos. 1 to 4, namely, Hira, Moti, Dhannaand Bodu, but also in favour of Shivji, Uda and Ramnath. In other words, Shivji, Uda and Ramnath along with petitioners Nos. 1 to 4, had jointly got khate-dari rights from Smt. Padam Kunwar. It is urged that since there was no injunction against Shivji, Uda and Ramnath they were free to reap the harvest and the petitioners could not be penalised for their action. It is pointed out that according to the Tehsildars report dated 3.4.63, it was Uda and Ramnath who had reaped the harvest and, therefore, the impugned order of the Revenue Board punishing the petitioners could not be maintained. 8. It is very candidly conceded by Shri B. G. Chatterji, Deputy Government Advocate, appearing for the Board of Revenue that learned counsel for the petitioners is correct to the extent that neither the trial court, nor the Revenue Appellate Authority., had given any firm finding about the possession of the plaintiff respondent before the institution of the suit. It is also conceded that the learned Members of the Board were under an erroneous impression that the trial court had found that the plaintiff was in possession of the disputed land. 9. It is also conceded that the learned Members of the Board were under an erroneous impression that the trial court had found that the plaintiff was in possession of the disputed land. 9. We have also gone into the orders of the trial court and the Revenue Appellate Authority dated 16.2.62 and 31.7.62, respectively. We find from the perusal of the trial courts order that it was wavering in its opinion and it could not come to a firm conclusion before it passed its order dated 16.2.62 whether it was the plaintiff or the respondents who were in actual possession of the land on the date when the suit was filed. It would be pertinent to reproduce here the observation of the trial court which was as follows: ^^lc ls vge ckr tks izfroknh ghjk us vius gyQukesa esa tkfgj dh gS og ;g gS fd mudh dkr fooknkLin Hkwfe ij [kM+h gqbZ gS vkSj laor~ 2018 dk [kjhQ dk yxku Hkh mUgksaus pqdk;k gSA vxj izfroknhx.k dh dkr fooknkLin Hkwfe ij gS rks ,slh lwjr esa muds f[kykQ fu"ks/kkKk tkjh djuk vuqfpr gksxk** 10. It is clear from the said observation that the trial court did not give a finding whether the plaintiff was in cultivatory possession of the land in dispute on the date of the suit. On the contrary, that court observed that, if the defendants had cultivated the field in Samvat year 2018 and were in possession thereof and if they had deposited the rent, a temporary injunction could not be justifiable against them. It is unfortunate that the learned Members of the Board got an impression that the Trial Court had given its finding about the plaintiffs possession in his favour. The trial court had dismissed the plaintiffs application on the ground that it could not pass an injunction under sec. 212 of the Rajasthan Tenancy Act, unless the plaintiff could prove that the property to which the suit related was in danger of being wasted, damaged or alienated by any party thereto. For the same reason the Revenue Appellate Authority dismissed the appeal without deciding the question as to which of the contending parties was in possession of the property. 212 of the Rajasthan Tenancy Act, unless the plaintiff could prove that the property to which the suit related was in danger of being wasted, damaged or alienated by any party thereto. For the same reason the Revenue Appellate Authority dismissed the appeal without deciding the question as to which of the contending parties was in possession of the property. It appears that the Revenue Board thought that the view taken by the two courts below, to the effect that it could not pass any temporary injunction unless the suit property was in danger of being wasted, damaged or alienated, was incorrect. It was of the view that temporary injunction could be passed even in a case where the plaintiffs possession was threatened and, therefore, after considering only the question of law, it passed an order of injunction on the supposition that the plaintiff was in possession of the disputed property. 11. It may be observed that in a suit for permanent injunction, a temporary injunction against the defendant directing him not to interfere with the property in dispute, can be passed only if the court comes to the conclusion that the property in dispute is in possession of the plaintiff. If the defendant is already in possession of the disputed property, a temporary injunction cannot be passed against him, because that would amount to depriving him of possession of the property. In other words, a defendant in possession of the property cannot be deprived thereof by a temporary injunction. If a defendant who is already in possession of the property before the issue of the injunction, continues in possession thereof after the injunction is passed, he cannot be taken to have disobeyed that order. We are fortified in this view by the observations of a Division Bench of Calcutta High Court passed in Nripendra Narayan vs. Beda Bala Debi (1). In that case it was observed following an earlier view of the Lahore High Court in Homi Rustomji Pardivala vs. Sub-Inspector Baig (2), that proceedings for contempt of court, though not criminal, are of a quasi-criminal nature and therefore where there is any reasonable doubt, the persons charged with contempt are entitled to the benefit of such doubt. In that case it was observed following an earlier view of the Lahore High Court in Homi Rustomji Pardivala vs. Sub-Inspector Baig (2), that proceedings for contempt of court, though not criminal, are of a quasi-criminal nature and therefore where there is any reasonable doubt, the persons charged with contempt are entitled to the benefit of such doubt. It was further observed that the same principle would apply even in the case of civil contempt as the liberty of the subject is involved and the court has to be satisfied beyond all reasonable doubt that notice of the Courts order was received before the acts complained of were committed. In that case the alleged contempt was that rent was collected after June 26, in breach of Courts injunction. It was observed, in these circumstances, as follows: "If however he had taken possession before the notice of the injunction was received, then there can be no question of a breach of this injunction, If he had already performed the act which the injunction restrained him from performing there could be no question of a breach, and I think it is clear that if the defendant-appellant had entered into possession on June 24, collection of rent thereafter could not possibly be a breach of the injunction because he would have been entitled to collect the rent by reason of taking possession and as the taking of possession could not be in breach of the injunction as it happened before the injunction was made, no question of contempt could arise." 12. In the present case also, if the petitioners could satisfy the Revenue Board that they were in possession of the disputed property at the date of the suit or, at any rate, before 12.10.62 when the first interim injunction was passed, they could not be held guilty of contempt, because of disobedience of the said order. We find that the enquiry about the petitioners possession was directed to be made by the Revenue Board by the Tehsildar. We find that the enquiry about the petitioners possession was directed to be made by the Revenue Board by the Tehsildar. We have gone through the report of the Tehsildar and find that he also did not give a clear finding as to which of the parties was in possession of the disputed field on the date of the suit or before 12.10.62 It further appears from the Tehsildars report that he did not find if the petitioners Hira, Moti, Dhanna and Bodu cultivated the field orreaped the harvest after 12.10.62. His report was that, on account of the injunction of the Revenue Board, these petitioners themselves did not reap the harvest, but they allowed Uda and Ramnath to reap the harvest and remove it from the field. It was also reported by him that the khatedari rights in the disputed field were transferred by Smt. Padam Kunwar in favour of petitioners Hira, Moti, Dhanna, Bodu, Shivji, Uda and Ramnath jointly, that all the transferees had cultivated the field jointly and reaped its harvest and simply because the harvest was reaped only by Uda and Ramnath, the petitioners Hira, Moti, Dhanna and Bodu could not escape their responsibility. It was unfortunate that the learned Members of the Revenue Board did not appreciate before punishing the petitioners that they could not be responsible for the actions of Shivji, Uda and Ramnath. According to the Tehsildars own report they were co-sharers with the petitioners and if they reaped the harvest in their own right the petitioners could not be punished for their action. The position might have been different if Shivji, Uda and Ramnath were strangers and the petitioners had employed them to reap the harvest on their behalf. 13. It is clear from the circumstances related above that the punishment imposed upon the petitioners was not justifiable. 14. We, therefore,, allow the writ application and quash the order of the Revenue Board dated 10.9.63. No order as to costs.