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2001 DIGILAW 57 (HP)

BHAGAT CHAND v. THELU

2001-04-23

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.—This revision petition under Section 115 of the Code of Civil Procedure (hereafter referred to as the Code) is directed against the order dated 16.6.1999 passed by the learned Additional District Judge, Mandi in CMA No. 11/1999 whereby the order dated 24.2.1999 passed by the learned Sub Judge (3), Mandi in CMA No. 201-VI/98 restraining the respondents/defendants (hereafter referred to as the defendants) from interfering with the possession of the petitioner/ plaintiff (hereafter referred to as the plaintiff) on land comprising Khasra No. 69 (now split into Nos. 702/69 and 703/69) measuring 3-7-1 Bighas, situate in Mauja Jhiri, Sub-Tehsil Aut, District Mandi (hereafter referred to as the suit land1), till the disposal of a civil suit between the parties pending before the said Court, has been reversed and thereby application of the plaintiff under Order 39 Rules 1 and 2 of the Code has been dismissed! 2. The facts material and relevant for the disposal of this petition are that the plaintiff instituted a suit against the defendants for declaration and permanent injunction averring that he purchased the suit land from one Sidhu who was exclusive owner in possession thereof vide registered sale deed dated 10.4.1973 and developed it by raising an almond orchard thereon. On 12.11.1998 the defendants threatened to occupy the suit land and the plaintiffs request to the contrary did not yield any positive result. The plaintiff then examined the revenue records and found that in his absence and without notice, the suit land had been partitioned and Khasra No. 702/69 measuring 2-1-19 Bighas has been allotted to him whereas Khasra No. 703/69 measuring 1-5-4 Bighas has been allotted to the defendants. It is further claimed that the said partition is collusive, illegal and inoperative and the defendants have no right, title or interest to interfere with the settled possession of the plaintiff. Hence the suit. It was along with the plaint that an application under Order 39 Rules 1 and 2 of the Code was also moved by the plaintiff for restraining the defendants from interfering with his possession over the suit land. 3. The defendants filed written statement and contested the claim of the plaintiff on various legal grounds regarding maintainability, want of cause of action and locus standi, limitation, estoppel and jurisdiction. 3. The defendants filed written statement and contested the claim of the plaintiff on various legal grounds regarding maintainability, want of cause of action and locus standi, limitation, estoppel and jurisdiction. On merits it is claimed that the plaintiff purchased only share of Sidhu in the land which was subsequently partitioned amongst the co-sharers and the mutation of partition was attested on 25.3.1987 and the parties are in possession of their respective allotted shares. It has been denied that the plaintiff had no knowledge of the partition. Application under Order 39 Rules 1 and 2 of the Code wars also contested on the same grounds. 4. The trial Court granted temporary injunction as prayed for by the plaintiff vide order dated 24.2.1999 but the Appellate Court reversed the order and dismissed the application under Order 39 Rules 1 and 2 of the Code by the impugned order and being aggrieved, the plaintiff has preferred this petition. 5. I have heard the learned Counsel for the parties and have also gone through the material placed on record. 6. The learned trial Judge appears to have come to the conclusion that the plaintiff is in possession of the suit land on the grounds that prima facie the partition took place at the back of the plaintiff and so was the attestation of mutation of partition and that the latest revenue entries are without any basis. 7. The learned Additional District Judge did not agree with the findings of the learned trial Judge on the grounds that the partition of the suit land could not be treated as non-est and admittedly the partition has not been challenged by the plaintiff before the competent authorities that is the Revenue Authorities and could not be called in question in a Civil Court and that the plaintiff and his predecessor-in-interest are recorded in possession of the suit land as co-sharers, therefore, there is no prima facie case in favour of the plaintiff. 8. 8. 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. 9. In case the aforesaid conditions are not satisfied, the High Court shall not interfere merely on the ground that a different view on facts as on record is possible. 10. It is not in dispute that the learned Additional District Judge had the jurisdiction to pass the impugned order, hence this is not a case of exercising the jurisdiction not vested in him nor it is a case of failure to exercise the jurisdiction vested in him. 11. It was contended by the learned Counsel for the plaintiff that the learned Additional District Judge has exercised the jurisdiction vested in him illegally and with material irregularity in setting aside the well-reasoned and proper order passed by the learned trial Judge. 12. A reference has already been made to the considerations that weighed with the trial Court in holding the plaintiff in possession of the suit land including the land that was allotted to the defendants in partition. The sale deed relied on by the plaintiff itself shows that it was share of one Sidhu in the suit land which was sold to him. Presently there is nothing on the record except the bare averment in the plaint that the suit land fell to the share of said Sidhu in the alleged private partition and he was exclusive owner in possession thereof. On the contrary, in the copy of Jamabandi for the years 1969-70 the suit land is shown in the possession of Sidhu as a co-sharer. Pursuant to the orders of the Assistant Collector II-Grade, Mandi, mutation regarding change of possession as a consequence of partition of the suit land had been attested on 25.3.1987 which prima facie shows that the parties and other co-sharers came in possession of the shares allotted to them. Pursuant to the orders of the Assistant Collector II-Grade, Mandi, mutation regarding change of possession as a consequence of partition of the suit land had been attested on 25.3.1987 which prima facie shows that the parties and other co-sharers came in possession of the shares allotted to them. The plaintiff has neither disclosed nor denied the allotment of some land other than the land Khasra No. 702/69 to him at that partition and it has not been specifically stated whether such other land is in his possession or not. Therefore, the prima facie inference which can be drawn, is that the suit land was jointly owned by the co-sharers at the time of its purchase by the plaintiff and was subsequently partitioned. The latest entries in the revenue records viz. copy of Jamabandi for the years 1996-97 show the land Khasra No. 702/69 in possession of the plaintiff and Khasra No. 703/69 in possession of the defendants. These entries appear to be consistent since 1986-87 vide copy of Jamabandi for the year 1986-87 relating to land Khasra No. 703/ 69 and in view of the copies of Khasra Girdawari for the years 1988 to 1998. Presumption of correctness is attached to the latest revenue entries and prima facie these could not be held to be unfounded and without basis particularly in view of entries in the mutation. The only prima facie conclusion could be that the plaintiff is not in possession of land Khasra No. 703/69. 13. There is no specific allegation that the defendants are interfering with the possession of the plaintiff on Khasra No. 702/ 69 nor the defendants have claimed any right, title or interest thereto. Some serious questions of law viz. the question of limitation and jurisdiction are also involved in the case which prima facie tilt the balance at this stage in favour of the defendants. 14. In view of the above discussion, it can be safely concluded that the learned Additional District Judge has not exercised his jurisdiction illegally and with material irregularity. Thus, the requisite conditions to interfere with the impugned order in exercise of the revisional powers of this Court are not satisfied. 15. As a result, this revision petition merits dismissal and is accordingly dismissed. 16. The parties, through their learned Counsel, are directed to appear before the trial court on 21.5.2001. Revision dismissed.