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1997 DIGILAW 1423 (RAJ)

Zaheer Ahmed v. Municipal Corporation, Jaipur

1997-11-27

ARUN MADAN

body1997
Honble MADAN, J.–This revision petition has been prepared to this court by the above named petitioner against the impugned- order dated 02.04.1997 passed by Additional District Judge No.7, Jaipur City, Jaipur in Civil Misc. Appeal No. 17/1995 (Zaheer Ahmed vs. Municipal Corporation) whereby the relief of ad-interim injunction in a suit filed by the petitioner plaintiff for grant of permanent injunction during the pendency of the main suit was declined by both the trial Court of Civil Judge (Junior Division)-cum-Judicial Magistrate No.4, Jaipur City, Jaipur vide its order dated 04.02.1995 in Civil Misc. Case No. 342/92 as well as by the appellate court vide the impugned order as referred to above. (2). The brief facts which are relevant for deciding the controversy between the parties are that the plaintiff petitioner had filed a suit for grant of permanent in- junction against the respondent defendant (hereinafter referred to as ``the Corporation) for protection of his possession, right and interest in the property in dispute since the Corporation was adopting coercive methods to dislodge and dispossess the petitioner from the suit premises without observing the due process of law and the procedure and the petitioner had been threatened by the Corporation for demo- lition of his property and as such, the petitioner had filed the aforesaid suit for the relief of permanent injunction with an application for grant of ad-interim injunction pending the hearing and final disposal of the said suit. The contentions of the petitioner briefly stated are that right from his forefathers the possession of the petitioner as regards the suit property has been continuous and this fact is borne out from the specific mention of his ancestor Shri Budha in the relevant record of Samwat 1925. The land in dispute forms the part of Khasra Nos. 271 to 289 which have been shown in the name of Budha the ancestor of the petitioner right from samwat year 1925 which fact is clearly borne out from the relevant record. The land in dispute forms the part of Khasra Nos. 271 to 289 which have been shown in the name of Budha the ancestor of the petitioner right from samwat year 1925 which fact is clearly borne out from the relevant record. Since the Corporation had taken every possible steps to dislodge the petitioner from the property in dispute which has been in his continuous possession right from the times of his ancestors and since the property was in need of immediate repairs on account of its dilapidated condition, the petitioner had carried out certain repairs which were of impelling necessity for the maintenance and upkeep of the said property and for which no formal permission from the Municipal Corporation was necessary since no new construction had been added or raised. (3). During the course of hearing learned counsel for the petitioner has further contended that immediately on the receipt of the notice threatening the petitioner with regard to demolition of his property and in view of the threatened and illegal action of the Corporation in having demolished the boundary wall surrounding the suit premises which was five feet in its height, the petitioner was constrained to file a suit for permanent injunction. Alongwith the main suit the petitioner had moved the necessary application for grant of ad-interim relief of injunction and had sought direction from the trial court to restrain the Corporation from demolishing his property with a further direction to maintain the status-quo. In support of establi- shing his prima facie case, the petitioner had furnished all relevant documentary evidence by placing the same on the record of the trial court such as House Tax Receipts w.e.f. the year 1980 to the date of institution of the suit, Ration Card, relevant extracts from the Voters List, City Survey Report and the Consensus carried out by the authorities which established the continuity of possession of the petitioner over the suit property in question. Besides the above documents a registered Patta establishing the possession of the petitioners grand father Late Shri Budha right from Samwat Year 1925 was also shown for perusal of the courts below. (4). In its written statement to the plaint in reply to the suit, the respondent Corporation contested the case by specifically controverting the contentions of the petitioner with regard to his continuous physical possession over the suit property in question. (4). In its written statement to the plaint in reply to the suit, the respondent Corporation contested the case by specifically controverting the contentions of the petitioner with regard to his continuous physical possession over the suit property in question. Since the respondent Corporation was not in a position to file any documentary evidence on the record of the trial court by way rebutting the case of the petitioner as such the interim order directing the parties to maintain status-quo should have been finally confirmed at the stage of its final disposal but, instead the suit came to be finally dismissed by the trial court vide the impugned order dated 4.2.1995. Against the said order, the petitioner preferred an appeal before the Additional District Judge No. 7, Jaipur City Jaipur in Civil Miscellaneous Appeal No. 17/95 (appellate court) as referred to above but the said court too dismissed the appeal preferred by the petitioner as against which the present revision petition has been preferred. (5). During the course of hearing Mr.G.C. Garg, learned counsel for the petitioner has vehemently contended at the bar that the impugned orders by the courts below are against the facts on the record and the law and hence being not sustai- nable, they deserve to be quashed and set aside. He has further contended that the courts below have not appreciated the factum of continuous possession of the petitioner right from the time of his forefather late Shri Budha from the Samwat year 1925 for which, sufficient documentary evidence was also placed on the record of the courts below. Since the possession of the petitioner was undisputed and he has been in continuous physical settled possession as lawful owner of the property in question right from Samwat year 1925 and, therefore, the Corporation had no business or authority vested in it by law to have dislodged and dispossessed the petitioner from the suit property in question and it further had no authority to carry out the threatened demolition of his property without observing due process of law and without affording an opportunity of show cause to the petitioner which obviously on the face of it is per-se illegal, arbitrary and without jurisdiction. (6). (6). Shri G.C. Garg, the learned counsel for the petitioner has further contended at the bar that it is settled proposition of law that even a trespasser cannot be evicted or dispossessed from the property without observing due process of law by any authority whereas in the instant case the Corporation had apparently not followed the procedure as envisaged in the Rajasthan Municipality Act, 1959 (hereinafter referred to as ``the Act of 1959). Learned counsel further contended at the bar that Corporation had not furnished any documentary proof to show that the property in dispute is a property belonging to the State Government and even the copy of the property register belonging to the Government/Municipal Corporation had not been submitted on the record of the trial court which would justify the contention of the Corporation that the property in dispute was a government property. By way of alternative argument, learned counsel for the petitioner further contended that when any illegal construction had been made as so falsely alleged by the respondent, no prior notice to show cause had ever been served on the petitioner as envisaged in the Act of 1959 and rather, the possession of the petitioner is proved on the record of this Court even by the notice dated 23.3.97 which was initially served on the petitioner. Hence, the findings of the courts below that the petitioner had carried out unauthorized construction of the disputed wall in the property in question are patently false as the same are not borne out from any oral or documentary evidence on the record. (7). Hence, the findings of the courts below that the petitioner had carried out unauthorized construction of the disputed wall in the property in question are patently false as the same are not borne out from any oral or documentary evidence on the record. (7). In order to appreciate the aforesaid contention as advanced by the learned counsel for the petitioner, I had thoroughly examined the impugned orders of the courts below i.e. 4/2/1995 and 2/4/1997 from the perusal of which, it is appa- rent that the findings of both the courts below that the proof of possession is not only sufficient to establish but the title should have also been established is, neither correct nor appreciable in law since what the petitioner is required to establish in support of his prima-facie case as per the requirements of Order 39 Rule 1 & 2 CPC at the time of passing of the initial order for the specific relief of interim-injunction is that he should have a good prima-facie case sufficient to establish his continuous physical and lawful possession of the property in question which fact can very well be established from the documentary evidence in the shaps of House Tax, Ration Card, City Survey Report, water & Electricity Bills, Municipal Receipts, registered documents of Patta of the land and even if some of the documents have been placed on the record of the trial court by the petitioner which would justify prima-facie establishment of his case which the Corporation has failed to contest the same by not furnishing any other relevant contemporaneous documents. Consequently I am of the view that on prima-facie view of the courts below should not have hesitated to grant the interim relief of injunction or directing the parties to maintain status-quo during the pendency of the suit. In the instant case, the approach adopted by both the courts below is absolutely illegal and without jurisdiction and the erring officials of corporation have obviously taken the law into their hands by unlawfully carrying out the demolition of the disputed boundary wall by threatening to illegally dispossess the petitioner from the suit property in question without affording him any due opportunity of hearing. In this regard, I am further of the opinion that the courts below have committed a serious error of jurisdiction in not appreciating that the petitioner had not only established his prima-facie case but also the balance of convenience and irreparable loss which has occasioned to the petitioner as a result of the aforesaid illegal action of the Corporation for which there was no foundation or authority on the part of the Corporation. I failed to understand that as to how the Corporation claims its rights over the property in dispute by alleging that it is a government land and that too without furnishing any cogent and reliable evidence on the record of the courts below as to how and in what manner it can be described as a government land. Further from perusal of the Local Commissioners report who was appointed by the trial court in order to carry out the site inspection, it is evident that the petitioner was in lawful and continuous possession of the property in dispute since Samwat Year of 1925 and it is also borne out from the said Report that there is illegal demolition of the disputed wall forming part of the petitioners property by the Corporation. In this regard, I am of the view that the courts below were duty bound not only to appreciate the aforesaid evidence which was placed on their record during the course of hearing of the suit before the trial court i.e. Additional Civil Judge (Jr. Division) & J.M. No. 4 Jaipur City, Jaipur and Additional District Judge No. 7, Jaipur City, Jaipur, respectively but also to discuss the same in their impugned orders by recording specific findings as to what were the reasons for taking contrary view of the matter, which the courts below have failed to discuss. (8). Surprisingly enough, both the courts below have failed to examine that the land in dispute forming part of Khasra Nos. (8). Surprisingly enough, both the courts below have failed to examine that the land in dispute forming part of Khasra Nos. 271 to 289 was in the possession of the petitioners grandfather Late Shri Budha right from Samwat year of 1925 and thereafter, the petitioners possession over the same has been continuous and was living alongwith his family in a constructed house and that the disputed property forms the part of the aforesaid Khasra numbers which aspect could have been very easily verified from the Revenue Records if summoned and examined by the courts below in their true perspective and which they have evidently failed to examine and appreciate that it was not government land but a private land in ownership of petitioner which he had derived from his fore fathers and of which he was of continuous physical possession and hence entitled to protect the same in accordance with law. This fact is also borne out from the Water Connection which was released in petitioners favour by the Municipal Authorities prior to 1992. I am further of the view that the courts below have committed a serious error of jurisdiction by dismissing the suit for permanent injunction as well as the application for ad-interim relief of injunction since the petitioner had successfully established the requirements of law i.e. prima-facie case, balance of convenience and the irreparable loss which had occurred to the petitioner as a consequence of the impugned orders of the courts below and the interest of justice requires that the Corporation be restrained from demolishing the property in dispute and to maintain the status-quo as regards the property in dispute pending hearing and final disposal of the suit. (9). Before parting with this case, I would like to observe that as against the order dated 4/2/1995 passed by the trial court dismissing the plaintiffs suit the peti- tioner had also preferred a revision being S.B. Civil Revision Petition No. 647/96 before this court and which was decided by this court vide order dated 2.1.1997 and while disposing of the revisional application, this court had set-aside the impugned-order dated 5/4/1996 passed by the Additional District Judge No. 7, Jaipur City, Jaipur in Civil Miscellaneous Appeal No. 17/1995 whereby, the learned Appellate court upheld the order of the trial court as regards the rejection of plaintiffs application for temporary injunction. This court while disposing of the aforesaid revision petition had opined that from the perusal of the records, it was clearly established that Commissioner had visited the locality and has submitted its report to the trial court on 14/02/1995 and the trial Court disposed of the injunction application on 4.2.1995 without perusing the local Commissioners Report dated 14.2.1995 and had obviously committed illegality in not appreciating the legal position in true perspective. This court while disposing of the aforesaid revision petition the trial Court disposed of the injunction application on 4.2.1995 without perusing the local Commissioners Report dated 14.2.1995 and had given a specific direction to the Appellate Court to grant re-hearing of the appeal to the appellant petitioner and, thereafter finally decide the case on merits after taking into consideration all relevant evidence on the record including the Commissioners Report specifically with regard to continuity of possession of the plaintiff petitioner in res- pect of the disputed land. It was further directed that the Appellate Court shall decide the appeal within 2 months from the date of communication of the order dated 2.1.1997 of this Court and till the matter is heard and finally decided, the status-quo as regards the possession on the date shall continue. (10). From the perusal of the impugned-orders of both the courts below, it is apparent that inspite of the aforesaid directions of this Court, the learned Appellate Court has not taken into consideration the material evidence on the record including the Commissioners Report etc. and as a matter of fact, the entire approach of the courts below is illegal being contrary to relevant documentary evidence on the record and hence cannot be sustained in the eyes of law. I am fortified in my obser- vations from the judgment of this court in the matter of Smt. Kamla Devi vs. Rani Avanti Bai Shiksha Samiti Bharatpur through Govind Prasad (1), the judgment of the Kerala High Court in the matter of Karthiyayani Amma vs. Govindan (2), the judgment of this Court in the matter of Peer Gulam Naseer vs. Peer Gulam Jelanee (3), as well as M/s. Toyni Bros. vs. Gram Panchayat Chicherwar (4), the judgment of Punjab & Haryana High Court in the matter of Sadhu Ram vs. Gram Panchayat Pastana (5); judgment of Manipur High Court in the matter of T.N. Indrani Devi vs. Municipal Board Imphal (6), judgment of the Calcutta High Court in the matter of Gramphone Company of India Limited vs. Shanti Films Corporation (7) and the judgment of the Bombay High Court in the matter of Smt. Sarladevi widow of Kun- danlal Bandawar Dharampeth, Nagpur vs. Shailesh (8). I have examined the aforesaid judgments of the various High Courts. I am of the view that at the preliminary stage of suit for permanent injunction, it is the primary duty of the trial court to take into consideration the salient aspects of the case to which in the opinion of the trial court should be sufficient to establish a good prima-facie case for grant of tempo- rary injunction as per requirements of order 39 Rule 1 & 2 CPC. If the trial court after examining the relevant evidence on the record arrived at a prima-facie opinion that a case is made out for granting ad-interim relief of injunction to the petitioner, it should not hesitate to grant the same after taking into consideration the balance of convenience and the likelihood of irreparable loss and injury which is likely to accrue to the petitioner as a result of with-holding the relief of injunction than by granting the same. If the said relief is not immediately granted, it would be resulting in permanent injury to the petitioner for which there cannot be any recompense at a later stage. The phraseology ``Prima-facie case would implies that there is a serious question to be tried and finally decided in the suit which is apparent on the perusal of the pleadings of the parties to the suit and that on the basis of the facts its cannot be said that the case is based on those facts which are wholly untenable and not maintainable. ``Prima-facie case only means a substantial question raised by the petitioner bonafidely which at the first glance needs investigation and enquiry and nothing more and nothing less. ``Prima-facie case only means a substantial question raised by the petitioner bonafidely which at the first glance needs investigation and enquiry and nothing more and nothing less. I am of the view that it is also a bounden duty of the trial court to protect an aggrieved party by granting the interim relief of Injunction or to maintain the status-quo as far as practicable while dealing with and deciding the matter till the suit is heard and finally decided since both the parties to the suit will have sufficient opportunity to establish and re- pell their respective contentions by leading evidence for and in rebuttal to the same. (11). As a result of above discussion, the revision petition is allowed. The impugned orders dated 4/2/1995 passed by the Additional Civil Judge (Junior Division) & Judicial Magistrate No. 4, Jaipur City, Jaipur in Civil Miscellaneous Case No. 342/92 and order dated 2/4/1997 passed by Additional District Judge No. 7, Jai- pur City, Jaipur in Civil Miscellaneous Appeal No. 17/95 are quashed and set aside. It is directed that the status-quo as subsisting between the parties with regard to property in question as on 2/1/1997 when this court had given certain directions to the respondent Corporation to comply with in S.B. Civil Revision Petition No. 647/1996 which was finally allowed and subsequently when the impugned orders dated 4/2/1995 & 2/4/1997 were passed declining the relief of ad-interim injunction, shall be restored on the file of the trial court with a further direction that the status-quo shall be maintained between the parties pending hearing and final disposal of the suit by the trial court. It is further directed that the trial court shall deal with and decide the civil suit No. 342/1992 expeditiously in accordance with law. It is further directed that the petitioner shall be at liberty to carry out necessary repairs with a view to protect the suit property if not already carried out in accordance with law and for which no sanction or approval of the Corporation will be necessary. Parties to suit shall be given full opportunity to lead their respective evidence in support of the case and thereafter the trial court shall pass a final order in accordance with law. There will be no order as to costs.