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2011 DIGILAW 612 (GAU)

Dangarkuchi Sonakuchi Graveyard v. Dinanath Das

2011-07-22

A.C.UPADHYAY

body2011
JUDGMENT A.C. Upadhyay, J. 1. This revision petition is directed against the judgment and order dated 29.03.2010 passed by the learned Civil Judge, Barpeta in Misc. Appeal No. 01 of 2009, affirming the order dated 19.03.2009, passed by the learned Munsiff No. 1, Barpeta, Assam in Misc.(J) No. 32 of 2008. 2. I have heard Mr. M. U. Mahmud, learned counsel appearing for the petitioner and Mr. S.K. Medhi, learned counsel representing for the respondents. 3. The facts, leading to filing of this revision petition, may be stated, in brief, as follows: - The respondents herein, as plaintiffs, instituted a title suit being No. 267 of 2008, seeking declaration of their rights, title, interest and possession over the suit land and also for permanent injunction restraining the defendant, petitioner herein, from using the land as Kabarstan. Along with the suit, an application was filed seeking injunction. Learned Trial Court having considered the materials on record by dispensing with the issuance of notices to the defendants was pleased to grant an ad-interim injunction, restraining the defendants from using the suit land as graveyard causing obstruction, disturbance, inconvenience and enjoyment of the petitioners, until disposal of the interim application. Subsequently, the learned Trial Court, upon hearing the learned counsel for the parties, vide order dated 09.03.2009, made the interim order of injunction absolute by holding that there is a prima facie case to justify issuance of temporary injunction as prayed for and the plaintiff-petitioners will be put into greater inconvenience and they will suffer irreparable loss, if the injunction as prayed for is refused. Consequently, learned trial Court by its order restrained the opposite parties from using the suit land as graveyard till final disposal of the suit 4. Being aggrieved and dissatisfied with the aforesaid order dated 29.09.2008 and 09.03.2009, the present petitioners, as appellants, preferred an appeal before the first appellate court. The first appellate court on careful perusal of the materials on record and due appraisal of the facts and circumstances leading to filing of the suit held that the learned Trial Court committed no irregularity or illegality in exercising jurisdiction, and consequently, dismissed the appeal by affirming the order passed by the learned Trial Court. 5. This revision is directed against the appellate order passed by the learned first appellate court in Misc. Appeal No. 01 of 2009. 5. This revision is directed against the appellate order passed by the learned first appellate court in Misc. Appeal No. 01 of 2009. The suit land measuring 4 bighas 1 katha 2 laches, which is fully described in the schedule of the petition as stated originally, was settled by the Government in the name of the plaintiff-respondent No. 1 and his bother Late Saitendra Das. Accordingly, the plaintiff-respondents continued to enjoy the suit property in question by possessing it, since the time of settlement. However, the defendant-petitioner herein, in the mean time, on 23.06.2008 entered into the suit land forcibly and started using the land as graveyard, for the Muslim community people. For the aforesaid act of the petitioner, the plaintiff-respondents requested them not to use the suit land as graveyard, but the petitioner refused to do so and instead threatened the plaintiff-respondents with dire consequences if they restrained them. However, after the aforesaid incident an ejahar was also lodged at Barpeta police station. But after filing of the ejahar the situation deteriorated and it took a serious turn, which escalated the dispute and dissention between the petitioners and the respondents. 6. Having seen the development, the plaintiff-respondents filed a petition before the District Magistrate, Barpeta, for drawing up a proceeding under Section 145 of Cr.P.C. The District Magistrate after receipt of the said petition forwarded the same to O/C of Barpeta PS. by calling for a report regarding the possession of the land in question. The O/C of Barpeta P.S., thereafter enquired into the matter and submitted report before the District Magistrate, Barpeta, informing him the tensed situation between petitioners and the respondents and also suggested for attachment of the suit land till final disposal of the proceeding under Section 145 of Cr.P.C. After receiving the report from the O/C, Barpeta P.S., the Additional District Magistrate, Barpeta started a Misc. Case and drew up a proceeding under Section 145 of Cr.P.C. and thereafter forwarded the case to the Executive Magistrate, Barpeta for disposal. The Executive Magistrate issued notice to both the parties, for submitting their respective stand in the proceedings, in respect of the suit land. 7. Case and drew up a proceeding under Section 145 of Cr.P.C. and thereafter forwarded the case to the Executive Magistrate, Barpeta for disposal. The Executive Magistrate issued notice to both the parties, for submitting their respective stand in the proceedings, in respect of the suit land. 7. It is contended on behalf of the petitioner that the respondent No. 1, Sri Dina Nath Das had sold the entire suit land in favour of one Khandakar Abdul Mazid by executing an unregistered sale deed on 19.02.1960 and the possession was delivered in favour of the said Abdul Mazid. The petitioners also disclosed that on 24.08.1993 one Khandakar Shahjahan Ali and Khandakar Adil Aman purchased the suit land from the respondent No. 1 and after such purchase the petitioners have been using the suit land as graveyard for the Muslim people. The respondents took the stand that the suit land was never sold to anybody at any point of time. The Government during the continuation of last settlement operation had issued annual patta in favour of the respondent Nos. 1 and 2 in respect of the suit patta. 8. This revision petition has been filed assailing the order passed by the learned first appellate court mainly on the ground that the learned first appellate court has committed gross error, irregularity and illegality in appreciating the materials on record in its proper perspective, which resulted in passing the impugned judgment and order. 9. Learned counsel for the petitioners submitted that the learned court below ought to have decided that in an injunction matter physical possession is important than the title over the suit land. Therefore, learned counsel for the petitioners submitted that commissioner was appointed by the learned court below to ascertain the status of possession of the suit land and in its report the Commissioner had prima facie observed that the petitioners are in occupation of the suit land and the land is being used as burial place at least from 01.02.1999. Learned counsel for the petitioners submitted that the order of temporary injunction over the suit land has indirectly brought the respondents in possession of the suit land, before any decision on title was tendered by the Court. Learned counsel for the petitioners submitted that the order of temporary injunction over the suit land has indirectly brought the respondents in possession of the suit land, before any decision on title was tendered by the Court. Learned counsel further contended that pendency of N.R. Case, before the Revenue Court, for cancellation of the Annual Patta issued to the respondents over the suit land, coupled with Mandal's report, was not considered while granting injunction. 10. Learned counsel for the plaintiff-respondents in reply to the above submission contended that on perusal of the concurrent findings of fact of the learned Court below, it would appear that the suit land in question is an Annual Patta land and the Patta, stands in the name of the respondents. Therefore, the claim of the respondents in the title suit ex facie reflects a substantive question to be decided during the trial, which needs to be investigated and finally decided on merit upon due evaluation of the evidence laid down by the parties. Therefore, undeniably the respondents had a prima facie case for trial. Furthermore, the Annual Patta is still in the name of the petitioners, which abundantly indicate that the petitioners have prima facie title over the suit land, since non-renewal notice for cancellation of Annual Patta has not been issued so far by the Government. Though the petitioners have claimed to have purchased the suit land by executing an unregistered sale deed, but such claim is required to be established during the trial. Until and unless such claim is established, prima facie title of the suit land and possession thereof as Annual Pattadar shall remain in the name of the respondents, who the 'patta' holders. 11. Learned counsel for the respondents submitted that though the petitioners' claimed to have been possessing the land and use it as graveyard, such use of land by the petitioners cannot be anything more than that of a trespasser. 12. Learned counsel for the petitioners by referring to a decision of the Hon'ble Supreme Court reported in (2008) 7 SCC 293: Yunus Ali v. Shursheed Akram has submitted that the High Court is empowered only to interfere with the findings of facts if they are perverse or if there is non-application or non-consideration of material evidence on record. 12. Learned counsel for the petitioners by referring to a decision of the Hon'ble Supreme Court reported in (2008) 7 SCC 293: Yunus Ali v. Shursheed Akram has submitted that the High Court is empowered only to interfere with the findings of facts if they are perverse or if there is non-application or non-consideration of material evidence on record. The Hon'ble Supreme Court in Yunus Ali (supra) has observed that the High Court in exercise of its jurisdiction should not interfere with the well-merited concurrent findings and reasonings recorded by the two courts below and it would not loose sight of the important fact that the learned Trial Court is still in seisin of the suit and pending before it for final decision. 13. The moot question raised by the petitioner is that the defendant-petitioners are in occupation of the graveyard at least since 1999 as reported by the commissioner. Learned counsel mainly relied on the report of the commissioner to interpret the occupation of the petitioners over the suit land as graveyard. The commissioner except finding a few graves in the land did not specify that the land in question was in occupation of the defendants and its committee. The plaintiff-respondent have claimed their rights as title holder over the suit land. The defendants-petitioners in turn assert their occupation by right of purchase from the plaintiff, which has been denied. Admittedly there would not be continuous occupation of the land except occasional trespass if a few burials have been made in the land. 14. Both the learned Court below upon due consideration of the aforesaid aspect of the matter with due reasons have allowed the prayer of the respondents for temporary injunction by holding existence of a prima facie case and balance of convenience in favour of the respondents in issuing the injunction. Learned courts below also have considered that if the suit land is allowed to be used forcefully as graveyard, the respondents would suffer irreparable loss and the purpose of filing the suit and awaiting for a decision thereto would be rendered ineffective 15. On careful perusal of the impugned order passed by the learned Court below, I do not find any perversity in the findings of the learned Courts below, warranting interference by this Court in exercise of jurisdiction under Section 227 of the Constitution of India. 16. On careful perusal of the impugned order passed by the learned Court below, I do not find any perversity in the findings of the learned Courts below, warranting interference by this Court in exercise of jurisdiction under Section 227 of the Constitution of India. 16. On careful analysis of the materials on record and in view of the above discussion, I am of the considered view that no illegality or irregularity has been committed by the learned Trial Court as well as by the learned First Appellate Court in exercise of their jurisdiction, warranting interference by this Court under Article 227 of the Constitution of India. Accordingly, the revision petition filed by the petitioners stands dismissed. 17. However, considering the facts and circumstances of the case, I pass no order as to costs. Petition dismissed