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1969 DIGILAW 107 (RAJ)

Kaluwa v. Nathi

1969-06-11

G.B.K.HOOJA

body1969
This is a revision against the order of the Revenue Appellate Authority, Kota dated 23-8-68 whereby he accepted the appeal of the opposite party against the order of the S.D.O. Bharatpur dated 1-7-67. Briefly stated the facts of the case are that the applicant filed a suit on 17-5-67 in the court of the S.D.O. Bharatpur against the non-applicant u/s 88 of the Rajasthan Tenancy Act for declaration and permanent injunction with regards to land in khasra No. 1881 measuring four bighas situated in Chak No. 2, town Bharatpur. The S.D.O. Bharatpur after hearing the parties, under his order dated 1-7-67, issued a temporary injunction in favour of the plaintiff restraining the defendant from interfering in the possession of the plaintiff over the disputed land. Having felt aggrieved against this order the defendant came up in appeal before the Revenue Appellate Authority. The learned R.A.A. found on the admission of the plaintiff that the disputed land stood in the Jamabandi and Khasra Girdawari in the khata and cultivating possession of the defendant. It was, however, claimed by the plaintiff that he had been in the cultivating possession of the land as a sub-tenant on payment of rent from S. 2012 onwardi. The trial court relying on the affidavits of the plaintiff and his witnesses and the report of the Commissioner that the plaintiff lived in his hut constructed on the. disputed land and had been cultivating it for the last 11-12 years, granted the temporary injunction. But the R.A.A. observed that the land records did not support the plaintiff who had neither produced any contract of tenancy nor any receipts for payment of rent. It was observed by the learned R.A.A. that the mere fact of having constructed the hut on the disputed land or a mere allegation of having cultivated the land did not establish the relationship of landlord and tenant which was essen-stial for the grant of temporary injunction in favour of the plaintiff. Accordingly, he accepted the appeal and vacated the temporary injunction issued by the S.D.O. Bharatpur in favour of the plaintiff vide his order dated 1-7-67. In attacking this order the learned counsel for the applicant has laid stress on the report of the Commissioner and the statements of the plaintiff and his witnesses that he was in possession of the land. In attacking this order the learned counsel for the applicant has laid stress on the report of the Commissioner and the statements of the plaintiff and his witnesses that he was in possession of the land. It is argued that temporary injunction is granted on the basis of prima facie proof of possession and the question of the right and title of the parties remains to be determined in the main case. It is contended that it was premature on the part of the learned R.A.A. to have examined this issue. It is contended that in relying upon the revenue entries, the learned R.A.A. has fallen into an error for as a matter of fact through this suit the plaintiff seeks to challenge the veracity of the entries in the revenue records. On the other hand, it is argued on behalf of the non-applicant that while seeking a temporary injunction the onus lies heavily on the plaintiff to establish that he has a prima facie case in his favour. It is contended that admittedly Jamabandis and Khasra Girdawari entries are in favour of the defendants and that presumption of truth attaches to the Jamabandi. It is further argued that in calling for the proof of contract of tenancy or the payment of rent, the learned R.A.A. has in no manner committed an illegality. In fact, it is urged that the plaintiff can maintain a case u/s 212 only if prima facie proof is forthcoming of his status as a tenant. As has been held in Gopiram vs. Shri Thakurji Samai (RRD 1956 page 68) the prima facie existence of a right and its infringement are primary conditions for the grant of a temporary injunction. A reference was also made to Rupa vs. Choga (RRD 1958 page 5). It is well established that a court of revision should not interfere with the orders of appointment of a receiver u/s 202 unless discretion has been exercised in disregard of settled principles of law. It is urged that in view of the failure of the plaintiff to have established the relationship of a tenant and a landlord, the learned R. A. A has committed no illegality in accepting the appeal against the order of the trial court, notwithstanding the report of the Commissioner. This contention must prevail. It is urged that in view of the failure of the plaintiff to have established the relationship of a tenant and a landlord, the learned R. A. A has committed no illegality in accepting the appeal against the order of the trial court, notwithstanding the report of the Commissioner. This contention must prevail. As has been stated by the learned R. A. A, admittedly, the land records stand in favour of the non-applicant. The plaintiff has failed to produce any proof of the contract of tenancy or the payment of rent. As such it was rightly concluded by the R. A. A. that the plaintiff is not entitled to the relief sought for. The grant of a temporary injunction is a discretionary remedy and before interference is made with the rights of a party entered in the land records, it is necessary for the party applying for temporary injunction to prove that it has a prima facie case and that an irreparable injury would be caused if the temporary injunction is not granted. Where the land records are in favour of the defendants-opposite party, no such danger existed and to restrict their right to cultivate would be tantamount to interference with their rights. In this view of the matter, I see no reason to interfere with the discretion exercised by the learned R. A. A. in my revisional jurisdiction. The revision petition is, therefore, rejected.