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2015 DIGILAW 1341 (RAJ)

Ramchandra v. Binja

2015-07-20

SANGEET LODHA

body2015
JUDGMENT : Sangeet Lodha, J. This petition is directed against order dated 22.1.15 of the Board of Revenue, whereby pending disposal of the revision petition preferred by the respondent, the effect and operation of order dated 12.1.15 passed by the Revenue Appellate Authority (RAA), Pali, affirming the order dated 16.3.09 passed by the Assistant Collector, Jaitaran, granting temporary injunction in favour of the petitioners, pending disposal of the suit, has been stayed. 2. The relevant facts are that the petitioners-plaintiff filed a suit under Section 53 of the Rajasthan Tenancy Act, 1955 (for short "the Act") for partition of the land in question accompanied by an application under Section 212 of the Act read with Order 39, Rule 1 and 2 CPC. The petitioners prayed for injunction in terms that the respondent may not raise construction over the disputed land in question and should maintain the status quo at the site. After due consideration, vide order dated 16.3.09, the trial court directed the parties to the proceedings not to raise any permanent construction over the land in question and to maintain the status quo at the site. The order passed by the trial court was appealed against by the respondent before the RAA, Pali. The appeal preferred was dismissed by the RAA vide order dated 12.1.15. Aggrieved thereby, the respondent preferred a revision petition accompanied by stay petition before the Board of Revenue. The revision petition stands admitted and while issuing the notice to the petitioners herein of revision petition as also of the stay petition, by the order impugned the effect and operation of the order passed by the trial court, affirmed by RAA stands stayed by the Board of Revenue. Hence, this petition. 3. On 5.2.15, while issuing notices to the respondents an interim order was passed by this court in favour of the petitioners in the following terms:- "In the meanwhile and until further orders, the status quo, as it exits today, shall be maintained by the parties." 4. Learned counsel for the petitioners submitted that every co-sharer has right to possession over every inch of the land and without partition of the land, the respondent cannot be permitted to raise construction thereon. Learned counsel for the petitioners submitted that every co-sharer has right to possession over every inch of the land and without partition of the land, the respondent cannot be permitted to raise construction thereon. Learned counsel submitted that the injunction granted by the trial court, having affirmed by the appellate court, the Board of Revenue in exercise of the revisional jurisdiction was not justified in staying effect and operation of the order so as to enable the respondents to raise construction over the land in question. 5. On the other hand, the counsel appearing for the respondent submitted that the injunction granted by the trial court, affirmed by the appellate court is against the basic parameters of prima facie case, balance of convenience and irreparable injury. Learned counsel submitted that even in the application preferred under Section 212 of the Act, the petitioners have not cared to implead all the co-sharers as party and therefore, the application was liable to be rejected on this count alone. 6. It is settled law that in the matter of the temporary injunction, the jurisdiction of the appellate court is not coextensive with that of the trial court. The appellate court can interfere with an order of the trial court granting or refusing injunction only when it is satisfied that (i) the trial court has acted contrary to law or (ii) has acted arbitrarily, or (iii) that the finding of trial court regarding the three requirements of grant of injunction are perverse or capricious or (iv) that there has been a misreading of the pleadings of evidence. In this view of the matter, the injunction granted in favour of the petitioners having affirmed by the appellate court, the scope of interference by the revisional court is very limited. Thus, on the facts and in the circumstances of the case, pending disposal of the revision petition, the order passed by the Board of Revenue staying the effect and operation of the order passed by the courts below, granting injunction in favour of the petitioners, does not appear to be justified. If the order passed by the Board of Revenue as aforesaid is permitted to remain in operation, obviously, the respondent may raise construction over the land in question and consequently, the injunction granted in favour of the petitioners by trial court, affirmed by the appellate court shall be rendered redundant. If the order passed by the Board of Revenue as aforesaid is permitted to remain in operation, obviously, the respondent may raise construction over the land in question and consequently, the injunction granted in favour of the petitioners by trial court, affirmed by the appellate court shall be rendered redundant. In this view of the matter, the order impugned passed by the Board of Revenue staying the effect and operation of the order passed by the RAA, affirming the order passed by the trial court, deserves to be set aside. 7. Accordingly, the petition is allowed. The order impugned passed by the Board of Revenue staying the effect and operation of the order dated 12.1.15 passed by the RAA, Pali and order dated 16.3.09 passed by the SDO, Jaitaran is set aside. The Board of Revenue is directed to decide the revision petition preferred by the respondent expeditiously, in any case, within a period of three months. Till the disposal of the revision petition, interim order dated 5.2.15 passed by this court shall remain operative. No order as to costs.