JAWALA SUNDER AHIR v. PUTTANLAL PHOOLCHAND PODDAR — 1985 DIGILAW 105 (MP)

JUDGMENT : ( 1. ) THIS is plaintiffs revision under Section 115 of the Civil procedure Code from the order dated 10-8-1983 of the Second Additional Judge to the court of the District Judge, Gwalior in Civil Miscellaneous Appeal No. 21/82, reversing the temporary injunction order dated 18-7-1982 of the Civil Judge (Class. II), Bhander restraining the defendants in C. S. No. 31-A/82 (filed on 13-5-1982) from interfering with the plaintiffs possession over certain agricultural holdings (area 3. 546 hectares) situate at village Berachh, tehsil Bhander, district Gwalior. ( 2. ) THE plaintiffs case is that on 12-8-1971 he mortgaged the suit lands (owned by him) with defendant No. 1 Puttan Lal and his brother Haridas (defendant No. 2) for Rs. 3,000/- and executed a registered deed in token of the mortgage. He however, continued to be in possession of the lands. In February 1982 the plaintiff came to know that the defendants 1 and 2 had in fact got a sale-deed executed for a stated consideration of Rs. 5,000/- and some-how manipulated mutation of the suit lands in their names on the basis of this registered instrument dated 12-8-1971 and then on 19-1-1982 they executed one registered sale-deed in favour of defendants No. 4 and 5 for Rs. 16,000/- in respect of 2. 733 hectares of the suit lands and another registered sale-deed in favour of defendant No. 3 for Rs. 6,000/- in respect of O. 733 hectare of the suit lands. Thus, the defendants now seek to dispossess the plaintiff of the suit lands. The plaintiff seeks a declaration of his title to the suit lands and for cancellation of the so called Sale deed dated 12-8-1971 after declaring it to be an instrument executed for securing a loan, and for a permanent injunction for restraining the defendants from interfering with the plaintiffs possession. ( 3. ) THE plaintiff filed an application for temporary injunction on the aforementioned averments along with the plaint. The trial Court passed a detailed order on 13-5-1982 and issued an ex-parte temporary injunction against the defendants. The defendants filed written statements and written replies to the application for a temporary injunction. The parties filed documents. ( 4. ) THE plaintiff filed his own affidavit dated 11-5-1982 and affidavits of Dunsai, infrani and Rajaram and of Narayan Das. On the other hand, defendant No. 4 Hukum Singh, Pnnna, Balbir Singh filed affidavits. ( 5. The defendants filed written statements and written replies to the application for a temporary injunction. The parties filed documents. ( 4. ) THE plaintiff filed his own affidavit dated 11-5-1982 and affidavits of Dunsai, infrani and Rajaram and of Narayan Das. On the other hand, defendant No. 4 Hukum Singh, Pnnna, Balbir Singh filed affidavits. ( 5. ) THE learned Civil Judge heard the counsel on the matter of temporary injunction on 7-7-1982 and passed an order on 14-7-1982 restraining the defendant from interfering with the plaintiffs possession of the suit lands. ( 6. ) THE learned Trial Judge gave the following reasons : ( 7. ) THE defendants took an appeal to the first appellate Court. The learned first appellate Judge heard the counsel and allowed the appeal. The learned Judge stated in his order as follows : 9. ". . . . It is manifest that the plaintiff/respondent executed a deed which on the lace of it, is a sale-deed executed in favour of appellants Nos. 1 and 2 for a consideration which was got registered by the Sub-Registrar, Bhander, in whose presence, the respondent confirmed having sold the land to appellants Nos. 1 and 2. Its perusal further exhumes the factum of the delivery of possession to the purchasers authorising them to get the land mutated in their name. The respondent of course made a sporadic attempt to exhibit that he continued to be in possession and title over the said land despite the execution of this deed which according to him, did not pass title of the land to the appellants Nos. 1 and 2 and which showed that he had actually not sold out the land. It is of course borne out from the copies of Khasra that the name of the respondent continued to exist till the year 1979-80 (Samvat 2036) but in the year 1980-81 the name of the appellants was mutated not only in Khasra but also in KHATONI being the record of rights by an order of competent authority and they appeared as BHUMISWAMI of the suit land. 10. There is a presumption of correctness of the entries in the record of rights by virtue of section 117 of M. P. Land Revenue Code, 1959 which cannot be lost sight of. Thus the fact remains that on the date of the suit i. e. on 13-3-1. 982, the appellants Nos. 10. There is a presumption of correctness of the entries in the record of rights by virtue of section 117 of M. P. Land Revenue Code, 1959 which cannot be lost sight of. Thus the fact remains that on the date of the suit i. e. on 13-3-1. 982, the appellants Nos. 1 and 2 were already existing in the record of rights in the title and possession of the suit land. That being so, the copies of the KHASRA had little to show the plaintiff on the right columns of the ledger. Thus the averments of the sale-deed together with the documents filed by the appellants drive out the respondent. The trial Court was overwhelmed with the circumstance of the non-recording of the name of the appellants in Khasra during all the time till 1980-81 and attributed this conduct of the appellants to the detriment of their interest which has yet to be adjudicated upon. Since the appellants/defendants in all probability are in possession of the suit land prior to the date of the institution of the suit on the basis of the sale-deed conspicuously on record, it could by no stretch of imagination be held that the respondent has a primal-face case. " ( 8. ) THE learned Judge then held that the elements of balance of convenience and irreparable injury are not made out. ( 9. ) IT is evident that the appellate Courts order cannot be assailed on the grounds stated in clauses (a) and (b) of Section 115 of the Civil Procedure Code, viz. that it exercised a jurisdiction not vested in it by law or that it failed to exercise a jurisdiction so vested. ( 10. ) THE applicant has, therefore, to show under clause (C) that the appellate court acted in exercise of its jurisdiction illegally or with material irregularity. Now. clause (C) of Section 115 of the Civil Procedure Code has been interpreted by the supreme Court in D. L. F. Housing etc. Company vs. Samp Singh (AIR 1971 S. C. 2324 (paragraph-8)) in the following terms : " The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. Company vs. Samp Singh (AIR 1971 S. C. 2324 (paragraph-8)) in the following terms : " The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view relate either to breach of some provision of law or to material defects of procedure affecting the decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. " ( 11. ) NOW, I see nothing in the appellate decision which may be regarded as having been given in breach of provision of any law. ( 12. ) IT remains to be seen whether the appellate judge committed any error amounting to any material defect of procedure affecting the decision. On the import or connotation of the expression any material defect of procedure affecting the decision, the following observations in Ramchandra vs. Ramalingam ( AIR 1963 SC 302 (paragraph 12)) in the context of clause (c) of Section 100 of the Civil Procedure Code shed the required illumination. "the error or defect in the procedure to which the clause refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to, the procedure, it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why. even if the appreciation of evidence made by the Lower Appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact, the lower appellate Court has placed the onus on a wrong party and its finding of fact is the result, substantially of this wrong approach, that may be regarded as a defect in procedure if in dealing with questions of fact, the lower appellate court discards evidence on the ground that it is inadmissible and the High court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate Court fails to consider an issue which had been tried and found upon by the trial Court and proceeds to reverse the trial Courts decision without the consideration of such an issue. That may be regarded as an error of defect in procedure ; if the lower appellate Court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may, in some be said to amount to a defect or error in procedure. " ( 13. ) LET us now see what the appellate order says. It says that there is a registered sale-deed, was only admitted by the plaintiff before the sub-registrar and in which there is an admission of the executant that had delivered possession of the suit lands to the vendees, viz. , the defendants 1 and 2. ( 14. ) AGAIN, the appellate Judge referred to the Khasra entries for the year 1980-81 and 1981-82 to the effect that in view of order passed in mutation cases, the plaintiff was being shown in column 3 as the recorded bhumiswami of the suit lands and in column 12 thereof there were no entries recording that actual possession was with the plaintiff. ( 15. ) IN acting upon the plaintiffs written admission in the sale-deed that the plaintiff had delivered possession of the demised lands to his vendees, relying on the circumstance that the Khasra entries for the two years, next before the date of institution of the suit, the learned appellate judge was acting within his jurisdiction as an appellate judge in preferring the aforementioned evidence for holding that the plaintiffs version of his being in actual possession of the suit lands did not commend itself to him. May be that the appellate judge was wrong in his conclusion but he had jurisdiction to reach even an erroneous conclusion on the basis of erroneous findings of fact and/or may be that the appellate judge was wrong in his conclusion but he had jurisdiction to reach even an erroneous conclusion on the basis of erroneous findings of fact and/or law, and in so doing he did not commit any error of procedure posited in the two supreme Court decisions. ( 16. ( 16. ) IN this connection, I may mention that after the passing of the impugned appellate order, the revenue orders of mutation passed in favour of the defendants were set aside in appeal by the S. D. O. Jora and then in second appeal the Commissioner stayed the operation of the aforementioned two orders. Even so, the appellate judges conclusion in the order impugned in this revision could stand on its own because he had jurisdiction to accept the plaintiffs admissions in the sale-deed executed by him about delivery of possession of the suit lands in pursuance of a stated contract of sale. ( 17. ) AS regards the non-consideration of affidavits filed by the plaintiff and his witnesses- and so also the affidavits filed for the defendants- these affidavits were verified- in contravention of Order XIX Rule 3 (1) of the Civil Procedure Code to be true from knowledge and belief and as such, they cannot be used as evidence, as was held in Federal India Assurance Company vs. Anand Rao Dixit (A. I. R. 1944 Nagpur 161 = 1944 NLJ 134) ( 18. ) IT is, therefore, clear that the impugned order was not arrived at by committing any defect of procedure affecting the decision. ( 19. ) THUS, the impugned order cannot be challenged on the ground that the appellate Court acted in exercise of its jurisdiction illegally or with material irregularity. The result is this that this Court in exercise of its jurisdiction under section 115 of the code of Civil Procedure cannot interfere with the impugned order. This is so because the Supreme Court has delineated and delimited the revisional jurisdiction in hindusthan Aeronautics Company Limited vs. Ajit Prasad (A. I. R. 1973 S. C. 76) in the following categorical and unambiguous words : "5. In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong, may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdicition to make that order. The order of the first appellate Court may be right or wrong, may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdicition to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under section 115 of the Civil Procedure Code". ( 20. ) IN the result, I dismiss the revision petition with costs. Counsels fees Rs. 50/ -. The parties are hereby directed through their counsel to appear before the trial court on 5-3-1985. The records of the Courts below with a copy of this order be sent to the District Judge, Gwalior who will then cause the trial Courts record with the copy of this order to be transmitted to the trial Court well in time. Revision petition dismissed.