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2001 DIGILAW 139 (HP)

HARI MOHAN v. KIRPA RAM

2001-07-10

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.:- This Revision Petition under Section 115 of the Code of Civil Procedure (hereinafter referred to as the Code) is directed against the judgment dated 28.9.1999 passed by the learned District Judge, Bilaspur whereby Civil Misc. Appeal No.2/96 preferred by the petitioner against the order dated 27.12.1995 passed by the learned Sub Judge 1st Class Bilaspur has been dismissed. 2. Brief facts leading to the presentation to this petition are that the respondent has filed a suit for declaration to the effect that he is owner in possession of the land comprising Khasra No. 138/47/1,138/47/2 and 138/47/3 measuring 5 Bighas 13 Biswas situate in village Gahar, Tehsil Sadar, District Bilaspur, H.P., on the ground that he had been in possession of the suit land prior to the grant thereof to the petitioner as Nautor and has become owner thereof by afflux of time. It has also been averred that the grant of Nautor in favour of the petitioner was illegal for varous reasons. Respondent has further prayed for permanent prohibitory injunction restraining the petitioner from interfering with his possession over the suit land. The respondent also moved an application under Order 39, Rules 1 & 2 of the Code for grant of temporary injunction. 3. The petitioner contested the suit on the grounds that he has been in possession of the land granted to him as Nautor which includes the suit land and the respondent had never been in possession of the suit land. The application was also contested on similar grounds and it was averred that the respondent is not entitled to the relief of temporary injunction as prayed for. 4. The learned trial Judge on hearing the parties on the aforesaid application came to the conclusion that no specific findings could be given regarding the possession of the parties over the suit land in view of the material on record, therefore, he directed the parties to maintain status-quo qua the suit land. Feeling aggrieved the petitioner preferred an appeal in the Court of the learned District Judge which was dismissed by the impugned judgment and the order passed by the trial Judge was affirmed. Hence this petition by the aggrieved petitioner. 5. Feeling aggrieved the petitioner preferred an appeal in the Court of the learned District Judge which was dismissed by the impugned judgment and the order passed by the trial Judge was affirmed. Hence this petition by the aggrieved petitioner. 5. I have heard the learned counsel for the petitioner and have also given an opportunity of being heard to the Advocate putting in appearance for the respondent and have also gone through the records. 6. Learned trial Judge after consideration of the pleadings of the parties and the respective documents brought by them on record came to the conclusion that on the basis of the material available on the record at this stage it was not possible to say as to which one of the parties was in possession of the suit land. The learned District Judge also concurred with the aforesaid findings of the learned trial Judge by observing that no clear-cut injunction order could be issued in this case because the question of possession is fluid and it could not be ascertained at this stage as to which of the parties is in actual or physical possession of the suit land. Thus, after perusal of the material placed on record both the courts below have recorded the concurred findings that at this stage it is not possible to come to a conclusion as to which one of the parties is in possession of the land in suit. 7. It is well settled that in exercise of its revisional jurisdiction High Court may interfere with an order passed by a Court subordinate to it against which Revision lies if the following conditions are satisfied: (1) That such subordinate Court while passing the order: (a) Has exercised a jurisdiction not vested in it, or (b) Has failed to exercise a jurisdiction vested in it, or (c) Has acted in the exercise of its jurisdiction illegally and with material irregularity, and (2) That such order if allowed to stand, will occasion a failure of justice or irreparable injury to the party against whom it is made. 8. It is also well settled that in exercise of the revisional jurisdiction interference on the ground that a different view on facts as on record is possible I is also not permissible. 9. This Court in Shiv Ram v. State of H.P. and Ors. 8. It is also well settled that in exercise of the revisional jurisdiction interference on the ground that a different view on facts as on record is possible I is also not permissible. 9. This Court in Shiv Ram v. State of H.P. and Ors. (Latest HLJ 2000 (H) 1024) while dealing with the scope of the revisional powers of the High Court has held as follows: "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 interfere by the High Court with the concurrent findings of the courts below will be justified only where such courts have exercised the 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." 10. In the Manning Director (MIG) Hindustan Aeronautics Ltd. Bala-nagar Hyderabad and another v. Ajit Prasad Tarway, Manager (P&S) Hindustan Aeronautics Ltd., (AIR 1973 SC 76) the Honble Supreme Court held as under: "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; 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 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. Samp Singh, 1970 (2) SCR 368 = AIR 1971 SC 2324." 11. (P) Ltd., New Delhi v. Samp Singh, 1970 (2) SCR 368 = AIR 1971 SC 2324." 11. It is thus clear that scope of interference in exercise of the revisional powers of the Court particularly in a case of concurrent findings is very narrow and unless one of the requisite conditions for such interference as already stated hereinabove is satisfied the interference shall not be justified. In the case in hand none of the aforesaid conditions is satisfied. On the contrary the concurrent findings arrived at by both the courts below that at this stage it was not possible to say as to which one of the parties was in possession of the suit land, are fully justified on the basis of the material brought on record by the parties. 12. When a situation arises wherein it is not possible to come to a prima. facie conclusion as to which one of the parties is in actual possession of the property forming the subject matter of the dispute in the suit, then the only safe course which could have been adopted was to direct the parties to maintain status quo regarding the possession and nature of the property, otherwise by restraining a party from interfering with the possession of the suit property is j likely to disturb the status-quo. Therefore, both the courts below in the facts and circumstances of the case have adopted the right course in directing the parties to maintain status-quo qua the suit land till the disposal of the suit and no interference by this Court is called for in exercise of its revisional jurisdiction. 13. As a result, this petition deserves to be dismissed and is accordingly dismissed. Parties however are left to bear their own costs. In view of the dismissal of the Revision Petition both these petitions have become infructuous and are accordingly dismissed. Parties through their learned counsel are directed to appear before the trial Court on 13.8.2001.