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2000 DIGILAW 324 (PNJ)

Kewal Singh And Ors. v. Kanti Pal And Ors.

2000-03-23

IQBAL SINGH

body2000
Judgment Iqbal Singh, J. 1. A civil suit for permanent injunction in respect of the land in dispute was filed by the plaintiff-respondent Kantipal against Kewal Singh and others. In the said suit, an application under Order XXXIX Rules 1 and 2 read with section 151 of the Code of Civil Procedure (hereinafter referred to as the Code) was filed by the plaintiff-respondent alleging therein that he is in cultivating possession of the suit land, but the revenue entries in the Jamabandi for the year 1975-76 depict wrong picture. Further, it is his case that in the year 1995, the legal heirs of Dig Pal raised claim on the basis of wrong entries in the revenue record, consequent whereupon, Subhash Chander had to file a suit for permanent injunction and declaration. In that suit, legal heirs of Yash Pal, Sat Pal and Dig Pal were declared as owners vide judgment and decree dated 19th February, 1997 passed by the Court of Smt. H.K. Randhawa, Civil Judge (Junior Division), Jalandhar. It has been further stated that the plaintiff-respondent is cultivating the suit land through his agents, who are none else but defendant Nos. 9 to 11. Defendant Nos. 1 to 8, on the strength of wrong entries in the revenue record, threatened to interfere in his (plaintiff-respondents) possession over the suit land. 2. The application was contested by defendant Nos. 1 to 3, 5, 7 and 8, who in their reply raised preliminary objections that the suit is not maintainable in the present form; that the plaintiff has not approached the Court with clean hands; that the plaintiff has no locus standi to file the present suit; and that the suit is liable to be rejected under Order VII Rule 11 of the Code. 3. On merits, it was denied that the plaintiff is co-owner and is in possession of any part of the property in dispute. It was stated that the revenue entries in the khasra girdawari as well as Jamabandi depict true picture and reflect the name of answering defendants were never a party to the suit which was decided by the Court of Smt. H.K.. Randhawa, Civil Judge (Junior Division), Jalandhar and, therefore, the findings, recorded by the said Court are not binding upon them (the answering defendants). 4. Randhawa, Civil Judge (Junior Division), Jalandhar and, therefore, the findings, recorded by the said Court are not binding upon them (the answering defendants). 4. The trial Court, by holding that prima facie case as well as balance of convenience is made out in favour of the plaintiff when he is co-owner in possession of the suit property and he will definitely suffer loss if the stay is not granted and is thrown out from the land in dispute, restrained defendant Nos. 1 to 8 from dispossessing the plaintiff forcibly from the suit land, except in due course of law, during the pendency of the suit, vide its order dated 23rd September, 1998. 5. Aggrieved against the said order passed by the trial Court, the defendant-petitioners went in appeal before the lower appellate Court and the same was dismissed vide order dated 24th December, 1998. 6. In this petition filed under section 115 of the Code, the defendant-petitioners have challenged the order passed by the lower appellate Court. 7. I have heard Shri M.L. Sarin, Senior Advocate, assisted by Miss Sweena Pannu, Advocate, and have gone through the records of the case. 8. The contention of the learned counsel for the petitioners is that the trial Court relied upon the report of the Local Commissioner only. In such a case of dispute as to who is in possession of the property, there is nothing wrong in relying upon the report of the Local Commissioner. The trial Court, after going through the report of the Local Commissioner, found that "the petitioner is managing the affairs of the property in suit through defendant Nos. 9 to 11". The trial Court also found support from the receipts is-, sued by the Electricity Department, which are in the names of Charanjit Singh, Baz Singh and Amarjit Singh (defendant Nos. 9 to 11). These defendants, in their reply to the stay application, admitted that they are cultivating the suit land as agents of the plaintiff. There is nothing wrong in getting the property being cultivated through agents by the plaintiff. 9. The second argument of the learned counsel for the petitioners is that the trial Court also relied upon the affidavit sworn by defendant Nos. There is nothing wrong in getting the property being cultivated through agents by the plaintiff. 9. The second argument of the learned counsel for the petitioners is that the trial Court also relied upon the affidavit sworn by defendant Nos. 1 to 8 to the effect that the Khasra girdawaris do not reflect the correct picture and that they would make each and every endeavour to get the wrong rectified in the revenue record. In my opinion, the trial Court rightly relied upon this affidavit as well. No doubt the affidavit will not replace the revenue record, but at the same time it is admitted by defendant Nos. 1 to 8 that the entries are wrong and that they would get the same corrected; thereby going to show that the revenue record does not depict true picture, otherwise there was no reason for them to have filed the affidavit. 10. The learned counsel for the petitioners also referred to the judgment dated 28th January, 2000 passed by the Civil Judge (Junior Division), Jalandhar, in Civil Suit No. 99/98 titled Mandir Murti Mata Tara Devi v. Subash Chander and Ors.. The copy of said judgment was taken on record by this Court on 11th February, 2000 by allowing Civil Miscellaneous Aplication No. 2100-CII of 2000 filed by the petitioners. Vide judgment dated 28th January, 2000 passed by the Civil Judge (Junior Division), Jalandhar, in civil suit No. 99/98, suit of the plaintiff for declaration has been decreed to the effect that the decree passed by the Court of Smt. H.K. Randhawa, Civil Judge (Junior Division), Jalandhar, dated 19th February, 1997 is illegal, void, wrong and unconstitutional and not binding upon the plaintiff and further the defendants have been restrained from alienating the suit property. But in my opinion, this will not help the defendant-petitioner to upset the concurrent findings recorded by both the Courts below, which prima facie found the plaintiff-respondent to be in possession of the property. Vide judgment and decree dated 28th January, 2000 Mandir Murti Mata Tara Devi, Jalandhar, has been declared to be owner of the property in the said judgment and decree between the parties. 11. After going through the records of the case, I find that the Courts below have rightly passed the order. Vide judgment and decree dated 28th January, 2000 Mandir Murti Mata Tara Devi, Jalandhar, has been declared to be owner of the property in the said judgment and decree between the parties. 11. After going through the records of the case, I find that the Courts below have rightly passed the order. It is not a case where the Court has no jurisdiction to pass the orders as it is not shown on record that the order has been passed beyond jurisdiction or any material irregularity has been committed. 12. While interpreting the provisions of section 115 of the Code, the Apex Court, in the Managing Director (MIG) Hindustan Aeronautics Limited, Balanagar, Hyderabad and Anr. v. Ajit Prasad Tarway, Manager (Purchase and Stores), Hindustan Aeronautics Limited, Balanagar, Hyderabad, A.I.R. 1973 S.C. 76, observed as under:- "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; or may be 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 section 115 of the Civil Procedure Code: See the decision of this Court in Pandurang Dhoni v. Maruti Hari Jadhav, (1966)1 S.C.R. 102 = (A.I.R. 1966 S.C. 153), and D.L.F. Housing and Construction Company (Private) Limited, New Delhi v. Sarup Singh, (1970)2 S.C.R. 368 = (A.I.R. 1971 S.C. 2324)." 13. The view taken by the Honble Supreme Court in Managing Director (MIG) Hindustan Aeronautics Limited, Balanagar, Hyderabads case (supra) was also relied upon by a Division Bench of the Apex Court while deciding the case of State of A.P. v. Vatuavvi Kumara Venkata Krishna Verma, (1999)2 S.C.C. 297. 14. For the aforesaid reasons, I do not find any illegality or material irregularity in the findings recorded by both the Courts below which may warrant exercise of revisional jurisdiction of this Court under section 115 of the Court. This revision petition is, accordingly, hereby dismissed being without any merit. 14. For the aforesaid reasons, I do not find any illegality or material irregularity in the findings recorded by both the Courts below which may warrant exercise of revisional jurisdiction of this Court under section 115 of the Court. This revision petition is, accordingly, hereby dismissed being without any merit. It is made clear that any observation made while disposing of this revision petition shall not affect the merits of the suit pending before the trial Court.