Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1110 (HP)

Sunder Lal v. Hari Dass

2017-09-21

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. During the pendency of Civil Suit No. 21/1 of 2014, an application cast under the provisions of Order 39, Rules 1 and 2 of the CPC was preferred by the plaintiffs/applicants/respondents herein, before the learned trial Court, wherein, they sought a prayer for the defendants, “during” the pendency of the civil suit, being temporarily restrained from cutting or removing trees grown upon the suit land and from causing interference vis-a-vis the suit khasra numbers. The learned trial Court upon considering the respective contentions of the parties at lis, hence directed them to, till the disposal of the civil suit, hence maintain status quo qua the nature and possession of suit khasra numbers. Being aggrieved therefrom, the plaintiffs/respondents herein by preferring an appeal before the learned Addl. District Judge-II, Solan camp at Arki, hence concerted to beget its reversal. The learned Additional district Judge-II, Solan, camp at Arki allowed the appeal and set aside the verdict rendered by the learned trial Court also made a pronouncement, that till the disposal of the civil suit the defendants' being temporarily restrained from interfering, carrying out digging and construction activities over the suit land. The defendants/petitioners herein being aggrieved therefrom, hence, instituted the instant petition before this Court. 2. Apparently, the learned Appellate Court, had, proceeded to mete deference to the jamabandis vis-a-vis suit khasra numbers. In the relevant jamabandies, vivid reflections occur in respect of the plaintiffs/respondents herein being borne therein, as, owners-in-possession of suit khasra numbers. With the defendants not yet adducing cogent evidence for displacing the presumption of truth attached to the aforesaid jamabandis appertaining to the suit khasra numbers, whereupon, alone the presumption of truth imputed to them would beget erosion. Corollary whereof, is, of the presumption of truth enjoyed by the apposite reflections occurring in the apposite jamabandis appertaining to the suit khasra numbers, meriting imputation of reverence thereto, as aptly done by the learned first Appellate Court. Corollary whereof, is, of the presumption of truth enjoyed by the apposite reflections occurring in the apposite jamabandis appertaining to the suit khasra numbers, meriting imputation of reverence thereto, as aptly done by the learned first Appellate Court. The aforesaid inference erected by this Court, does, leverage concomitant inference of (a) prima facie the plaintiffs establishing qua theirs being entitled to the relief of temporary injunction as prayed for in the application cast under the provisions of Order 39, Rules 1 and 2 of the CPC also (b) in case it is refused theirs being entailed with irreparable loss or injury and (c) the balance of convenience being loaded vis-a-vis the plaintiffs than vis-a-vis the defendants. 3. Be that as it may, with the presumption of truth enjoyed by the apposite entries occurring in the revenue records appertaining to the suit land, whereupon, they hence at this stage prima facie establish, of, the plaintiffs being entitled to the relief afforded to them besides with the aforesaid triplicate principles begetting satiation, thereupon, the learned first Appellate Court, has meted an apt deference to the relevant records, besides has aptly affirmatively applied vis-a-vis the plaintiffs, the aforesaid triplicate tests. Consequently, the impugned order recorded by the learned Appellate Court, does not, beget any stain of its either discarding germane relevant evidence or any taint of the learned first Appellate Court not applying the cardinal tests thereon. In sequel, the order of the learned appellate Court, does not, suffer from any gross perversity and absurdity of mis-appreciation of the relevant material on record. 4. The learned counsel appearing for the petitioners/defendants, had, during the course of addressing arguments before this Court, alluded to the factum of the entries appertaining to the suit khasra numbers, as, borne in the revenue record standing subjected, to, an assault vis-a-vis their validities, by the defendants comprised in theirs instituting subsequent to the instant civil suit, civil suit No. 71/1 of 2014. However, with the defendants' suit, wherein they cast a challenge vis-a-vis the validities of the entries borne in the revenue records appertaining to the suit khasra numbers, standing, evidently instituted subsequent to the instant suit, thereupon, obviously the might or the rigor of the principle of res subjudice embodied in Section 10 of the CPC looses its vigour, nor is attractable hereat nor any pronouncement made upon the application cast under the provisions of Order 39, Rule 1 and 2 of the CPC, during the pendency of the plaintiffs' suit bearing No. 21 of 2014, would also not beget any vitiations arising from its standing rendered despite pendency prior thereto of the defendants' suit, especially when only upon the defendants' suit being instituted prior to the extant suit, would render any pronouncement upon the extant application cast under the provisions of 39, Rules 1 and 2 of the CPC, to beget vitiatory attractions of the principle of res subjudice enshrined in Section 10 of the CPC besides emphatically when in consonance therewith any pronouncement, made upon the instant application, during pendency of prior thereto instituted suit, of the defendants, rather contrarily enjoins, of, the latter instituted suit, being ordered to be stayed. Contrarily also when the application, cast, under the provisions of Order 39 Rules 1 and 2 of the CPC , as, stood instituted in the defendants' suit bearing C.S. No. 71 of 2014, hence sequelled an order from the learned trial Court, that, till the final disposal of the main suit, the litigating parties maintaining status quo qua the suit land, whereas, the learned Appellate Court in an appeal preferred therebefore, by the aggrieved defendants (plaintiffs herein), reversing the aforesaid order, ratherproceeding to record an alike pronouncement/order as made upon Civil Misc. Appeal No. 10 AK/13 of 2015 . Also this Court while deciding CMPMO No. 85 of 2016 as arises from the Civil Misc. Appeal No. 11AK/13 of 2015, proceeding to record the hereinafter extracted observations:- “The impugned order dated 24.12.2015 passed by learned Additional District Judge-II, Solan, District Solan, H.P., camp at Arki in Civil Mis. Appeal No. 11AK/13 of 2015, titled as Hari Dass and others Versus Surat Ram alias Surtia & others, is self speaking. The defendants have been retrained temporarily from interfering, dispossessing and alienating the suit property. Appeal No. 11AK/13 of 2015, titled as Hari Dass and others Versus Surat Ram alias Surtia & others, is self speaking. The defendants have been retrained temporarily from interfering, dispossessing and alienating the suit property. The petitioners herein are not the defendants, as such, no interference is required in the present petition, so filed under Article 227 of the Constitution of India. However, liberty is reserved to the petitioners to seek clarification from the concerned Court or file a fresh petition on the same cause of action, if need so arises subsequently” 5. A reading whereof makes it clear of this Court, not, interfering with the orders recorded by the learned First Appellate Court in Civil Misc. Appeal No. 11AK/13 of 2015 rather it reserving liberty vis-a-vis the petitioners herein to seek clarifications from the concerned Court or to subsequently file a fresh petition on the same cause of action, if need so arises. Consequently, no affirmative reliance can be placed upon the aforesaid judgment. It appears that the learned First Appellate Court had accorded akin reliefs in both Civil Misc. Appeal No. 11Ak/13 of 2015 and in Civil Misc. Appeal No.10AK/13 of 2015. However, the learned Appellate Court in Civil Misc. Appeal No. 11AK/13 of 2015 appears to by sheer typographical mistake, occurring in the last page of the order recorded a stray sentence “restraining the defendants”, therefrom no capital can be derived by the petitioners herein, especially when it is in conflict with its trend of reasoning besides appears to conflict with the sentences occurring prior thereto, wherein rather the Appellate Court concerned has allowed the appeal of the appellants/defendants arising from orders pronounced in a CMA instituted during the pendency of Civil Suit No.71/1 of 2014. 6. For the foregoing reasons, the instant petition is dismissed and the impugned order is maintained and affirmed. No order as to costs. All pending applications also stand disposed of.