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2001 DIGILAW 68 (HP)

STATE OF H. P. v. PARKASHO DEVI

2001-05-02

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.—This revision petition under Section 115 read with Section 151 of the Code of Civil Procedure is directed against the judgment/order dated 1.4.2000 passed by the learned District Judge, Hamirpur in Civil Miscellaneous Appeal No. 32 of 1998 whereby order dated 17.12.1997 passed by the learned Senior Sub Judge, Hamirpur allowing the application of plain tiff-respondent No.l (hereafter referred to as the plaintiff) under Order 39 Rules 1 and 2 CPC restraining the petitioner-defendant and proforma respondents-defendants 2 to 5 (hereafter referred to as the defendants) from interfering in the land in suit has been affirmed. 2. The plaintiff instituted a suit for permanent prohibitory injunction restraining the defendants from causing any interference in the land comprised in Khata No. 50, Khatauni No. 130, Khasra Nos. 989/978 measuring 5 marlas situate in chak Bhoranj Uparla, Teh. Bhoranj, Distt. Hamirpur (hereafter referred to as the suit land) on the grounds that she is the owner in possession thereof and the defendants who are strangers to the suit land are trying to interfere in her possession. Alongwith this suit, plaintiff moved an application under Order 39 Rules 1 and 2 CPC for grant of temporary injunction restraining the defendants from interfering with her possession over the suit land during the pendency of the suit. 3. The defendants contested the suit on the grounds that the suit land in fact is in possession of Block Samiti, Bhoranj since 1958-59 which has planted fruits and ornamental plants thereon. Therefore, the claim of the plaintiff was denied and on similar grounds, the application under Order 39 Rules 1 and 2 CPC was also opposed. 4. After hearing the parties, the learned trial Judge, vide his order dated 17.12.1997 allowed the application of the plaintiff and granted temporary injunction restraining the defendants from interfering with the suit land till the disposal of the suit. Feeling aggrieved, the defendants preferred an appeal in the Court of the learned District Judge, Hamirpur which was dismissed by the impugned judgment. 5. I have heard the learned Counsel for the parties and have also gone through the material placed on record. 6. There is no dispute that initially the suit land was allotted by the State to one Anant Ram sometimes in the later half of 70s and was mutated in his name as owner in possession. 5. I have heard the learned Counsel for the parties and have also gone through the material placed on record. 6. There is no dispute that initially the suit land was allotted by the State to one Anant Ram sometimes in the later half of 70s and was mutated in his name as owner in possession. On 9.4.1996, said Anant Ram sold the suit land to the plaintiff. It is not the case of the defendants that the allotment of the suit land in favour of Anant Ram was bogus one or that it has ever been cancelled in accordance with law and possession of the suit land was ever taken back. It can be lawfully inferred at this stage that when the land was allotted to Anant Ram, he was put in possession thereof. In case the land would have been in possession of defendant Block Samiti since 1958 59, it could not have been allotted to Anant Ram and in case it was a mistaken allotment, it ought to have been cancelled by now which does not appear to have been done. Against this background, the conclusions of the Courts below based on the entries in the revenue records showing the suit land earlier in possession of Anant Ram and thereafter in possession of the plaintiff right from the year 1980 cannot be said to be perverse or illegal. Even otherwise, the concurrent findings of fact arrived at by the Court below that the plaintiff is in possession of suit land cannot be interfered with in exercise of the revisional powers of this Court unless it is shown that the jurisdiction vested in them has been exercised by the Courts below illegally or with material irregularity. However, commission of such illegality or material irregularity by the Courts below is not shown in this case. 7. The learned Assistant Advocate General has contended that a report submitted by the Tehsildar to the Deputy Commissioner about the factual position on the spot has not been taken into account by the courts below. It is not disputed that such a report has been prepared in the absence of the plaintiff and even in that report it is not the case that the suit land was not allotted to Anant Ram. It is not disputed that such a report has been prepared in the absence of the plaintiff and even in that report it is not the case that the suit land was not allotted to Anant Ram. Therefore, even such a report does not negate the factum of allotment of the land, its sale and the consistent entries in the revenue record showing the predecessor in interest of the plaintiff and the plaintiff in possession of the suit land. It has been averred in the petition that the lower appellate Court ought to have appointed a Local Commissioner to ascertain the spot position. However, it is not the case of the defendants themselves that they ever applied either before the trial Court or before the appellate Court for appointment of any Local Commissioner and it was not obligatory on the part of either of the Courts to collect evidence for the defendants by appointing a Local Commissioner. 8. For the reasons as stated hereinabove, there is no merit and substance in the present revision petition which deserves to be dismissed. 9. As a result, this revision is dismissed. Revision dismissed.