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1969 DIGILAW 36 (GAU)

Nurmahamed v. Md. Abdul Karim

1969-08-04

R.S.BINDRA

body1969
ORDER One Abdul Karim filed a suit against Nurmahamed and 11 others seeking a decree for permanent injunction restraining the latter from interfering with his possession over certain land described in the plaint. The suit was instituted by Abdul Karim in his capacity as Chairman of Usoipokpi Pisciculture Co-operative Society Ltd., hereinafter called the Society. Simultaneously with the institution of the suit, Abdul Karim moved an application under Rules 1 and 2 of Order 39 and Section 151 of the Civil Procedure Code for securing temporary injunction restraining the defendants from interfering with the possession of the Society over the land until the disposal of the suit. That application was granted by Shri M. C. Ray, Subordinate Judge, Manipur, by his order dated 5th August, 1968. Aggrieved by that order the defendants filed an appeal in the Court of the District Judge who happened to reject the same on 21-11-1968. In the present revision petition filed by the defendants, they challenge the correctness of the orders made by the trial Court and the appellate Court. 2. The facts of the case as set out in the plaint are that the Fishery No. 231 at Usoipokpi had been leased out by the Government to Longjam Tombi Singh for the period 15-9-1965 to 31-3-1968. Abdul Karim, the plaintiff, worked as an Agent of that Tombi Singh for managing the Fishery. Some 20 persons living in the vicinage of the Fishery threatened to enter into possession of some land forming part of the Fishery and to overcome that threat Tombi Singh afore-mentioned and Abdul Karim instituted Title Suit No. 3 of 1966 claiming permanent injunction against the said persons. The plaintiffs also sought temporary injunction during the pendency of the suit and the Court granted that prayer. Subsequently, on 26-4-1967, the Government addressed a communication to the Deputy Commissioner and the Settlement Officer approving that the Fishery be settled with the Society for a period of 5 years with effect from 1-4-1968, that 50 paris of land covered by the Fishery be de-reserved, and that 30 paris out of those 50 paris should be allotted to the Society. It was pleaded further that the Society paid the Fishery revenue and assumed possession over the Fishery as also 30 paris of land with effect from 1-4-1968. It was pleaded further that the Society paid the Fishery revenue and assumed possession over the Fishery as also 30 paris of land with effect from 1-4-1968. On 20th of April 1968, and on the succeeding dates, the defendants of the instant suit No. 23 of 1968 tried to disturb the possession of the Society over 30 paris of land aforementioned. It is to meet that development that Abdul Karim was forced to file the suit out of which this revision has arisen. 3. The defendants contested the suit and traversed the pleadings of the plaintiff Abdul Karim. Their defence was that they had been in occupation of the land for a period of 4 to 5 years and so the prayer for temporary injunction made by the plaintiffs had no meaning in the context of their possession over the land. It was denied that the Government had settled any part of the land out of the Fishery area with the Society. The defendants also placed on record some copies of the Dag Chithas to support their assertion that they had been in possession of the land for a long time. 4. The trial Court and the first appellate Court held the Dag Chithas to be inadmissible in evidence. At the same time they admitted the document marked Ext. A/3 filed by the plaintiff and on the basis thereof reached the conclusion that the Government had settled 30 paris of land with the Society. 5. After analysing the arguments addressed at the bar I have reached the conclusion that the Courts below were not justified in either placing reliance on document Ext. A/3 or in rejecting the copies of the Dag Chithas. It was conceded by Shri A. Nilamani Singh, representing the plaintiff Abdul Karim, that Ext. A/3 is not a certified copy of the original letter alleged to have been addressed by the Government to the Deputy Commissioner. In reply to a Court question Shri A. Nilamani Singh stated that the document Ext. A/3 is a copy prepared privately from the original at the time of inspection of the relevant file by someone on behalf of Abdul Karim. If this is the true nature of the document, it is obviously not admissible. Firstly, there is no guarantee that it is a correct a copy of the original. A/3 is a copy prepared privately from the original at the time of inspection of the relevant file by someone on behalf of Abdul Karim. If this is the true nature of the document, it is obviously not admissible. Firstly, there is no guarantee that it is a correct a copy of the original. In the second instance, the only legal way of proving the letter would be to produce a certified copy thereof if the plaintiff, for some reason or another, is unable to procure in Court the original letter. As at present, the document has no value in the eye of law and so the Courts below were altogether unjustified in placing reliance on it. 6. A perusal of the document reveals that the Government had reached the tentative decision that the Fishery be leased out to the Society for a period of 5 years with effect from 1-4-1968, that 50 paris of land out of the Fishery area should be de-reserved, and that 30 paris out of that land be allotted to the Society. In the penultimate para of the letter, the Secretary, who signed the letter, made a request to the Deputy Commissioner to take steps to implement the decision reached by the Government. We have no evidence that, that decision has been implemented and the Society placed into possession of 30 paris of land. In this back ground the Courts below, it is evident, were wrong in assuming that the Fishery has been leased out to the Society and 30 paris of land allotted to it. 7. The Dag Chithas were not taken into consideration by the trial Court for the reason that they are not admissible in evidence since they had not been duly published for the purposes of attestation and as such the presumption of correctness attaching to record of rights cannot be claimed for them, while they were ruled out by the learned District Judge on the footing that the entries in them did not establish that they pertain to the land in dispute. A perusal of the trial Courts order would reveal that it was not represented before it that the Dag Chithas do not relate to the land in dispute. A perusal of the trial Courts order would reveal that it was not represented before it that the Dag Chithas do not relate to the land in dispute. In this Court such an objection was raised by Shri A. Nilamani Singh, but when Shri T. Bhubon Singh, representing the defendants petitioners examined the documents in Court Shri A. Nilamani Singh found it difficult to sustain his objection. Therefore, the appellate Courts rejection of the documents for the reason stated by it cannot be justified. 8. The trial Court was also wrong in not taking the documents into consideration on the score that they were inadmissible because of their non-publication for the purpose of attestation. The Dag Chithas are prepared under Rule 66 of the Manipur Land Revenue and Land Reforms Rules 1961, hereinafter called the Rules. Sub-rule (1) of that Rule provides that the Survey and Settlement Officer shall get prepared Dag Chitha in Form 7 through the Revenue Officer. The latter Officer, it is stated further shall prepare the Dag Chitha after consulting the previous records and also after making local investigation. If there is any dispute, the fact shall be noted in the remarks column and that dispute shall be referred to the Survey and Settlement Officer. Sub-rule (2) of the Rule requires that the entries in the Dag Chitha shall be explained to the persons concerned by the Survey and Settlement Officer, and that, the latter shall enquire into the disputes referred to in sub-rule (1) as also into such other disputes relating to entries in the Dag Chitha as may be raised at the spot during the course of local investigation. This inquiry, sub-r. (2) enjoins, shall be in the summary manner and the disputes shall, as far as possible, be decided on the basis of actual possession. Rule 67(1) provides that after the Dag Chitha has been prepared but before the record attestation begins the Survey and Settlement Officer shall cause a draft Jamabandi to be drawn up. "The fields which have been found in the possession of each land-holder and the classification of each field as entered in the Dag Chitha, the sub-rule states further, "shall be written but at that stage there shall be no entry under the head revenue in the draft jamabandi." Draft tenants khatiana shall also be prepared, the sub-rule prescribes, from the Dag Chitha. It is thus apparent from these Rules 66 and 67 that draft Jamabandi and Khatian have for their foundations the entries in the Dag Chithas. Therefore, Dag Chithas constitute an important basic step in the preparation of the record-of-rights, which expression, according to Rule 56, consists of Jamabandi and tenants khatian. The Dag Chithas without dispute do not form part of record-of-rights. But equally indisputably the Dag Chithas are documents in the nature of revenue records and they are prepared by public servants in discharge of their statutory functions and as such they are relevant under Section 35 of the Evidence Act. That section enacts that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record is kept, is itself a relevant fact. It would, therefore, follow that the trial Court had gone wrong in declaring the Dag Chithas as inadmissible in evidence. 9. In wrongly admitting Ext. A/3 and unjustifiably rejecting the Dag Chithas, the Courts below committed serious irregularity and material illegality in exercise of their jurisdiction, and as such this Court can certainly interfere in exercise of its power under Section 115 C.P.C. In this connection I invite reference to the case of Hira Lal v. Hari Narain, AIR 1964 All 302 , wherein it was held that, when in dismissing an application of the auction-purchaser under Order 21, Rule 97, of the Civil Procedure Code, the Court below did not properly approach the case and in arriving at the result in favour of the objector omitted to take into consideration several pieces of evidence placed on the record by the auction-purchaser and took into consideration materials which it could not legally do, the Court shall be taken to have acted with material illegality and irregularity vitiating the result and justifying interference in revision by the High Court. Shri A. Nilamani Singh, appearing for Abdul Karim, cited the case of Pandurang Dhondi v. Maruti Hari, AIR 1966 SC 153 , to support the contention that the present revision petition is not maintainable for none out of the three conditions mentioned in Section 115 C. P. C. is proved. Shri A. Nilamani Singh, appearing for Abdul Karim, cited the case of Pandurang Dhondi v. Maruti Hari, AIR 1966 SC 153 , to support the contention that the present revision petition is not maintainable for none out of the three conditions mentioned in Section 115 C. P. C. is proved. However, on going through the report I find that nothing observed by the Supreme Court stands in the way of instant revision petition. I think our case clearly falls within the purview of clause (c) of Section 115 because the Courts below have committed an illegality and have acted with material irregularity in the exercise of their jurisdiction by ignoring relevant and admissible Dag Chhithas and by taking into consideration the document Ext. A/3 which was clearly not admissible. It was held in the case of Union of India v. Bakshi Amrik Singh, AIR 1963 Punj 104, that unproved copies, in which category Ext. A/3 falls, are not admissible even for the purpose of granting temporary injunction. Hence, I hold that the revision petition filed by the defendants is maintainable under Section 115 of the Civil Procedure Code. 10. On merits, the revision petition must succeed. Neither the title of the Society to the land nor its possession over the land is proved on the record. If the Government had allotted the land to the Society, as alleged in the plaint, it would not have been difficult for the Society to place on record a copy of the order of allotment. The suit was instituted on 23-4-1968 and the Society is said to have entered into possession of the land earlier on 1-4-1968. If for more than 15 months that the suit has now been pending the Society could not produce in Court the order of alleged allotment, it is safe to assume that no such allotment has so far been made. It is the contention of the defendants-petitioners that they had been in possession for a period of 4 to 5 years by the date they were summoned in the trial Court. This claim to possession is substantiated by the entries in the copies of Dag Chithas produced by them. Further, it will be noted that according to the allegations of the Society it had entered into possession of the land only 23 days before the suit was instituted. This claim to possession is substantiated by the entries in the copies of Dag Chithas produced by them. Further, it will be noted that according to the allegations of the Society it had entered into possession of the land only 23 days before the suit was instituted. It is not the case of the Society that the Government had placed it into possession of the land. The previous possession over the land, according to the Society, was that of Tombi Singh. It is correct that Abdul Karim is said to have been managing the land attached to the Fishery on behalf of Tombi Singh. However, the suit has been instituted not by Abdul Karim in his personal capacity but in his capacity as the Chairman of the Society. There being no data to satisfy this Court that either Tombi Singh or his Agent had delivered possession of the land to the Society, I do not feel safe in holding that possession over the land at present is that of Society and not of the defendants petitioners. If the Society was not in possession of the land on the date of the institution of the suit, as prima facie appears to be the situation, no case for issuing temporary injunction is made out. 11. As a result, I allow the petition and on setting aside the orders of the trial Court and of the appellate Court I reject the prayer for temporary injunction made by the Society. The petitioners shall get costs in this Court as also in the two Courts below. Advocates fee Rs. 25/-. Petition allowed.