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2000 DIGILAW 278 (HP)

SHIV RAM v. STATE OF HP

2000-10-22

M.R.VERMA

body2000
JUDGMENT : M. R. Verma, Judge :- This Revision Petition under Section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 1.9.1999 passed by the learned District Judge, Shimla in Civil Miscellaneous Appeal No. 35-S/14 of 1999 whereby an appeal preferred by the petitioner/plaintiff (hereinafter referred to as the plaintiff) against the order dated 15.6.1999 passed by the learned Sub Judge 1st Class (II), Shimla dismissing the application of the) plaintiff under Order 39 Rules 1&2 CPC for grant of temporary injunction I has been dismissed. 2. Brief facts leading to the presentation of the present petition are that plaintiff has filed Civil Suit No. 45/1 of 1999 against the respondents/ defendants (hereinafter referred to as the defendants) seeking declaration that he is owner in possession of the land comprising khasra Nos.866/2, 870/1, 701/1, 703/1, 893/1, 1128/2 and 1175/2 measuring 61-2 bighas situate in Mauja Badhai, pargana Jajhot, Tehsil and District Shimla (hereinafter referred to as the suit land) and that the entries in the Revenue Records showing the State of Himachal Pradesh as the owner of the suit land and the residents of the area in the enjoyment thereof are wrong, illegal, void and of no consequence. He has further claimed the relief of permanent prohibitory injunction restraining the defendants from interfering in his possession over the suit land. It is averred in the plaint that the suit land was allotted to the father of the plaintiff by the ruler of rest while State of Keonthal by way of Nautor on payment of Najrana. On an application preferred by his father the Revenue Filed Staff carried out the demarcation of the suit land on the spot and put the father of the plaintiff in possession thereof, however, the entries in the revenue records were not accordingly changed and instead the State of Himachal Pradesh continued to be shown as owner of the suit land. After the death of his father the plaintiff claims to have succeeded to the suit land. It is also claimed that he has planted a number of plants thereon and has been enjoying the usufruct thereof since 1949. It is also the case of the plaintiff that an order for ejectment of his father from the suit land was passed on 10.7.1962 under the provisions of Section 163 bf the H.P. Land Revenue Act. It is also claimed that he has planted a number of plants thereon and has been enjoying the usufruct thereof since 1949. It is also the case of the plaintiff that an order for ejectment of his father from the suit land was passed on 10.7.1962 under the provisions of Section 163 bf the H.P. Land Revenue Act. however, such order was not executed with the result that the plaintiff continued in possession of the suit land. It is, therefore, claimed that in case the grant of the suit land in favour of the father of the plaintiff by the ex ruler of erstwhile estate of Keonthal is not proved in that event he has acquired title by prescription/lapse of time because of his continuing in hostile and uninterrupted possession of suit land for more than 30 years. In December, 1998 defendants Society and the Contractor (respondents 2 and 3) started bighas of land forming part of khasra No. 703 claiming that this land has been leased by the defendant State in favour of the defendant Society for a period of 99 years. Hence, the suit. It was alongwith the plaint that an application under Order 39 Rules 1 & 2 CPC also moved by the plaintiff praying for temporary injunction restraining the defendants from interfering in his possession over the suit land till the disposal of the suit. 3. Defendant Society filed written statement and contested the claim of the plaintiff. In the written statement the claim of the plaintiff regarding his possession over the suit land and the allotment thereof to his father by the ruler of the erstwhile state of Keonthal by way of Nautor has been denied. It has been claimed that land measuring 2-13 bighas comprising khasra No. 1473/1349/703/1 had been allotted to the defendant society by the Defendant State for construction of flats for its members and thus the claim as made out by the plaintiff in his plaint has been denied. For similar reasons the claim for temporary injunction was also contested. 4. Learned trial Judge dismissed the application under Order 39 Rules 1 & 2 CPC thereby declining the prayer of the plaintiff for grant of temporary injunction. Feeling aggrieved the plaintiff preferred an appeal in the court of learned District Judge who dismissed the same by the impugned judgment. Hence, the present petition. 5. 4. Learned trial Judge dismissed the application under Order 39 Rules 1 & 2 CPC thereby declining the prayer of the plaintiff for grant of temporary injunction. Feeling aggrieved the plaintiff preferred an appeal in the court of learned District Judge who dismissed the same by the impugned judgment. Hence, the present petition. 5. I have heard the learned counsel for the parties and have also gone through the record. 6. It was contended by the learned counsel for the plaintiff that there is sufficient material on the record in the form of patta1, certificates and affidavits to prima facie show that the suit land was granted as nautor to the father of the plaintiff and thereafter earlier the father of the plaintiff and after his death the plaintiff has been in continuous cultivating possession of the suit land and an orchard has been raised thereon, therefore, keeping in view the claim as made out in the plaint and the facts and circumstances of the case the balance of convenience is in favour of the grant of temporary injunction as prayed for and the refusal thereof will cause an irreparable injury to the plaintiff which cannot be adequately compensated in terms of money. 7. On the other hand while supporting the conclusions arrived at by the courts blow and the orders passed by them it was contended for the respondents, (i) that the concurrent findings given by the courts below holding that this was not a case for grant of temporary injunction as prayed for do not call for interference by this Court in exercise of its Revisional Powers under Section 115 of the Code of Civil Procedure (hereinafter referred to as the Code); (ii) that the suit of the plaintiff is bound to fail because of the contradictory and self destroying pleas that the plaintiff is owner of the suit land by virtue of its grant as Nautor and that he has become owner of the suit land by virtue of adverse possession; and (iii) that even on merit the material placed on record does not disclose a prima facie case in favour of the plaintiff. 8. 8. It may be pointed out at the very outset that the contention raised for the defendants that the suit of the plaintiff is bound to fail because of the contradictory and self destroying pleas that the plaintiff is owner of the suit land by virtue of its grant as Nautor and that he has become owner of the suit land by virtue of adverse possession, is unsustainable and cannot be a ground for dismissing the Revision Petition because it is open to a party to base its claim on alternative pleas and ordinarily injunction cannot be refused simply on the mere hypothesis that the suit may be ultimately dismissed. 9. There is no dispute that both the courts below have found that this is not a case for grant of temporary injunction as prayed for. Evidently, this prima facie conclusion has been arrived at by the courts below after perusal of the material placed by the courts below after perusal of the material placed by the plaintiff on record in support of his case. The scope of interference by the High Court under Section 115 of the Code was considered by the Honble Supreme Court in the Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar Hyderabad and another versus Ajit Prasad Tarway, Manager (P&S) Hindustan Aeronautics Ltd. (A. I. R. 1973 Sc 76) wherein it was held as follows: "5. In 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; maybe in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction 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 S. 115 of the Civil Procedure Code : See the decision of this court in Pandurang Dhoni v. Maruti Hari Jadhav, (1966) 1 SCR 102= (AIR 1966 SC 153), and D. L. F. Housing & Construction Co. (P) Ltd., New Delhi v. Sarup Singh, (1970)2 SCR 368 = (AIR 1971 SC 2324)." 10. (P) Ltd., New Delhi v. Sarup Singh, (1970)2 SCR 368 = (AIR 1971 SC 2324)." 10. In the Municipal Corporation of Delhi vs. Suresh Chandra Jaipura and another (A. I. R. 1976 SC 2621) the scope of interference by the High Court with the concurrent findings of the lower courts in exercise of its powers under Section 115 of the Code was again considered. In the said case the trial court and the First Appellate Court had refused to grant interim injunction in favour of the plaintiff. However, in exercise of its Revisional powers the High Court of Delhi interfered with the concurrent findings of the two courts below and granted interim injunction. In Appeal the Court held that the interference by the High Court with the concurrent findings was not justified as the Court with the concurrent findings was not justified as the Court had overlooked the principles governing interference under Section 115 of the Code. 11. It is also well established that in exercise of the revisional jurisdiction interference of the ground that a different view on facts as on record is possible is also not permissible. 12. It is thus evident from the above that the scope of interference by the High Court with the concurrent findings of the Courts below in exercise of its powers under Section 115 of the Code is very narrow. However, the interference by the High Court with the concurrent findings of the Courts below will be justified only where such courts have exercised "he jurisdiction not vested in them by law or have failed to exercise the jurisdiction vested in them or have acted in the exercise of such jurisdiction illegally or with material irregularity. 13. In the case in hand though various documents have been placed on record by the plaintiff to substantiate his claim as made out in the plaint and to show that he has a prima facie case but such documents are of the nature to which the presumption of correctness is not attached. On the contrary the plaintiff himself has brought on record the latest copy of jamabandi of the land in suit which shows that the suit land is owned by the State of H.P. and is in possession of defendant Society in its capacity as lessee on payment of Rs 100/- per annum. On the contrary the plaintiff himself has brought on record the latest copy of jamabandi of the land in suit which shows that the suit land is owned by the State of H.P. and is in possession of defendant Society in its capacity as lessee on payment of Rs 100/- per annum. Even in the earlier jamabandis brought on record the suit land is shown to be owned by the State Government and in the possession of bashindgan deh and the plaintiff or his father has not been shown in the exclusive possession of the suit land in any of the revenue entries brought on record. Even in the aks tatima of the suit land brought on record by the plaintiff himself a note has been appended that the land khasra No. 1519/1473 /1378/703/1 which is factually the subject matter of the suit so far as allegations of interference are concerned, is fenced by the barbed wire and is uncultivated and the defendant Society had marked this land for the purpose of construction. Prima facie such a marking could have been done by the defendant Society only after it has come to possess this part of the suit land. Therefore, in view of the latest entries in the revenue record having the presumption of truth and the spot position as depicted in the aforesaid aks tatima it cannot be said at this stage that the concurrent findings recorded by the courts below is a result of having exercised the jurisdiction vested in them illegally or with material irregularity. Therefore, the concurrent findings recorded by the Courts below and the impugned order passed thereon does (sic) call for any q interference by this Court in exercise of its revisional jurisdiction. 14. As a result, the present Revision petition merits dismissal and is accordingly dismissed. 15. The parties, through their learned counsel are directed to appear before the trial Court on 13th November, 2000. In the meanwhile, the record of the trial Court be returned so as to reach the said Court before 13th November, 2000.