Research › Browse › Judgment

Orissa High Court · body

1985 DIGILAW 32 (ORI)

RAGHU MOHAPATRA v. BHASKAR MOHAPATRA

1985-01-22

K.P.MOHAPATRA

body1985
JUDGMENT : K.P. Mohapatra, J. - This Civil Revision is directed against the reversing order passed by the learned Subordinate Judge, Chatrapur issuing temporary injunction against the Petitioners from entering upon the suit land. 2. The opposite party instituted a suit against the Petitioners in the court of the learned Munsif, Kodala for a decree of permanent injunction claiming title and possession as the hereditary trustee/Archak in respect of Ac.0.92 of suit land belonging to deity Kanakeswar Mohaprabhu, Bije at, village Kanaka. According to his case, he was the adopted son of late Kusa Mali alias Krushna Mohapatra, indisputedly the hereditary trustee/Archak of the deity. During the pendency of the suit he prayed for temporary injunction to restrain the Petitioners from entering upon the suit land and disturbing his possession. Petitioner No. 1, the main contestant of the suit, denied that the opposite party had any vestige of title or possession in respect of the suit land. He also seriously disputed his adoption by the hereditary trustee/Archak, late Krushna Mohapatra. His case was that late Krushna Mohapatra and his brother, Naba Mohapatra were the hereditary trustees/Archaks of the deity Kanakeswar Mohaprabhu, Bije at village Kanaka and as such were in possession of the suit (sic) and other lands belonging to the deity. Even before the birth of the opposite party, late Krushna Mohapatra went away to Rangoon and was unheard of. Therefore, his wife remarried the younger brother, Naba Mohapatra and begot two daughters one of whom was married to Petitioner No. 1, who lived in the house of his father-in-law as illatom son-in-law and remained in possession of the suit and other lauds of the deity for performance of Seva Pooja. 3. The learned Munsif refused to issue temporary injunction against the Petitioners. In appeal, however, the learned Subordinate Judge found that all the ingredients of Order 39, Rule 1, CPC were satisfied and so while reversing the order of the trial court, he issued temporary injunction against the Petitioners. 4. Before issuance of temporary injunction under Order 39, Rule 1, Code of Civil Procedure, the court must have to be satisfied that the party praying for the relief has prima facie title, he will suffer irreparable injury if temporary injunction is not granted and the balance of convenience is in his favour. 4. Before issuance of temporary injunction under Order 39, Rule 1, Code of Civil Procedure, the court must have to be satisfied that the party praying for the relief has prima facie title, he will suffer irreparable injury if temporary injunction is not granted and the balance of convenience is in his favour. In order to prove these essential ingredients, the opposite party placed reliance on a deed of adoption said to have been executed by late Krushna Mohapatra alias Kusa Mali in his favour stating therein about the fact of adoption, the certified copy of the record of rights showing the opposite party as the son of late Krushna Mohapatra and as the Marfatdar of the deity in respect of the suit land, the rent schedule revealing the same fact as above, as well as rent receipts. Petitioner No. 1, on the other and, produced reinterprets showing payment of rent, as well as an electoral-roll showing that the opposite party was described as the son of Anand Mohapatra. The learned Subordinate Judge, for the purpose of disposal of the injunction petition, accepted the documents relied upon by the opposite party. With regard to the rent-receipts produced by Petitioner No. 1 he observed that rent might have been paid for the lands in possession of the branch represented by Naba Mohapatra, brother of late Krushna Mohapatra and so such rent-receipts could not disprove possession of the suit land by the opposite fairly. With regard to the electoral-roll he took the view that it had no connection with the real fact and was not a substantive piece of evidence. He also found that an illatom son-in-law is not an heir of the father-in-law according to the Hindu Succession Act. Therefore, on consideration of the respective merits or the, claims of the parties, the learned Subordinate Judge found, and in my view rightly so that the opposite party, had prima fade title in respect of the suit land, he would suffer irreparable injury and the balance of convenience was in his favour. 5. During hearing of the Civil Revision two documents were shown to me by the learned Counsel appearing, for the Petitioners. The first document was the certified copy of the sale-deed by which the opposite party along with others sold the suit land in the year 1981 to Sasi Devi. 5. During hearing of the Civil Revision two documents were shown to me by the learned Counsel appearing, for the Petitioners. The first document was the certified copy of the sale-deed by which the opposite party along with others sold the suit land in the year 1981 to Sasi Devi. The second document was an order dated 30-4-1984 in a proceeding u/s 145, Code of Criminal Procedure in which an Executive Magistrate declared the possession of the Petitioners. So far as the first document is concerned, it was not produced at the time of hearing of the petition under Order 39, Rule 1, CPC before the trial and the appellate courts. Therefore, it was not taken into consideration. Even while tiling the Civil Revisional, the said document was not produced as a piece of additional evidence. The order u/s 145, Code of Criminal Procedure was obviously passed after disposal of the injunction matter by the learned Subordinate Judge. This document was also not produced m tins Court as a piece of additional evidence. Therefore, these two documents cannot be taken into consideration at belated stage since they were Hot produced in accordance with law. 6. Learned Counsel for the opposite party challenged the maintainability of the Civil Revision u/s 115, CPC on the ground that the High Court should not interfere with the pure finding on facts arrived at by the learned lower appellate court. His contention is not without merit. When the question, is one relating to pure appreciation of evidence it is not a case for interference in Civil Revision and it cannot be said that the lower court has exercised its jurisdiction not vested in it by law or has acted in exercise of its jurisdiction illegally or with material irregularity. In other words it is not open to the High Court in exercise of its revisional jurisdiction to question the finding of fact recorded by a subordinate court. Revisional jurisdiction shall be exercised in cases involving questions of jurisdiction, i.e. questions regarding the irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved see Manindra Land Building Corporation Ltd. v. Bhutnath Banerjee and Ors. AIR 1966 S.C. 1336, Pandurang Dhoni Chougule Vs. AIR 1966 S.C. 1336, Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, and Maguni Naik v. Chemai Naik and Ors. 34 (1968) C.L.T. 396. In the instant case, the learned Subordinate Judge exercised jurisdiction vested in him according to law and appreciated the evidence in a correct manner. Therefore, I do not find any substance for interference with the order passed by him in exercise of jurisdiction u/s 115, Code of Civil Procedure. The Civil Revision is, therefore, without merit. Accordingly, the Civil Revision is dismissed. Hearing fee is assessed at Rs. 75/-. Final Result : Dismissed