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2019 DIGILAW 2787 (RAJ)

Kalu Ram v. State of Rajasthan

2019-11-05

SANGEET LODHA

body2019
JUDGMENT : Sangeet Lodha, J. 1. This petition is directed against order dated 19.8.2019 passed by the Board of Revenue Rajasthan, whereby a revision petition preferred by the petitioner questioning the legality of order dated 17.7.2019 passed by the Revenue Appellate Authority (RAA), Barmer, dismissing the appeal preferred by the petitioner against the order dated 1.3.2017 passed by the Assistant Collector, Sindhari, rejecting an application preferred under Section 212 of Rajasthan Tenancy Act, 1955 ( for short "the Act") stands dismissed. 2. The petitioner filed a suit for permanent injunction under Section 188 of the Act, against the respondents in respect of the land ad measuring 2.10 bighas comprising khasra no. 23/8 allotted in favour of Gram Panchayat, Sindhari Charnan for construction of building of Gram Panchayat, accompanied by an application under Section 212 of the Act, seeking temporary injunction against the Sarpanch, Gram Panchayat, restraining him from raising construction over the land in question. 3. After due consideration, the application preferred by the petitioner was dismissed by the Assistant Collector vide order dated 1.3.2017 observing that as per the report of Patwari, the petitioner is in illegal possession of the land of Gram Panchayat. The appeal preferred by the petitioner against the aforesaid order dated 1.3.2017 was dismissed by the Revenue Appellate Authority (RAA) vide order dated 17.7.2019. Aggrieved thereby, the revision petition preferred by the petitioner has also been dismissed by the Board of Revenue by the order impugned. Hence, this petition. 4. Learned counsel appearing for the petitioner contended that the petitioner is khatedar tenant of the land measuring 8 bighas 2 biswas comprising khasra no. 23/6 and was in possession of the land measuring 2.10 bighas comprising khasra no. 23/88 allotted in favour of Gram Panchayat. Learned counsel submitted that when the possession of the petitioner over the disputed land was not in dispute, the courts below have seriously erred in holding that there is no prima-facie case in his favour. It is submitted that if the petitioner is dispossessed from the land in question, the very purpose of filing the suit shall stand frustrated. Learned counsel submitted that the revision petition having been admitted, the Board of Revenue could not have dismissed the application seeking injunction filed by the petitioner. It is submitted that if the petitioner is dispossessed from the land in question, the very purpose of filing the suit shall stand frustrated. Learned counsel submitted that the revision petition having been admitted, the Board of Revenue could not have dismissed the application seeking injunction filed by the petitioner. In this regard, petitioner relied upon the Bench decisions of this court in the matter of Shri Sarwan Singh and Others vs. Shri Bhajan Singh and Others, D.B. Civil Writ Petition No. 2077 of 1992 and Bhanwar Lal vs. State of Rajasthan and Others, D.B. Civil Special Appeal No. 606/2006, decided on 22.5.2007. 5. On the other hand, the counsel appearing for the respondents submitted that the concurrent findings arrived at by the courts below after due consideration of the material on record, cannot be said to be capricious or perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. Learned counsel submitted that admittedly, the petitioner has unauthorisedly occupied the land comprising khasra no. 23/8 and being an unauthorised occupant, he had no prima-facie case in his favour and thus, the Board of Revenue has committed no error in declining to interfere with the concurrent findings arrived at by two revenue courts. 6. I have considered the rival submissions and perused the material on record. 7. It is settled law that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that the plaintiff has strong prima-facie case in his favour and unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. 8. Further, in the matter of grant of temporary injunction, the jurisdiction of the appellate court is not co-extensive with that of the trial court. 8. Further, in the matter of grant of temporary injunction, the jurisdiction of the appellate court is not co-extensive 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. RSEB vs. Mool Chand Jangir, (1993) 3 WLC (Raj) 388. 9. In Skyline Education Institute Pvt. Ltd. vs. S.L. Vaswamin and Another, (2010) AIR SCW 628, the Hon'ble Supreme Court after considering its various earlier decisions dealing with the scope of appellate court's power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction observed: "The ratio of above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter, it is possible for the appellate court to form a different opinion on the issues of prima-facie case, balance of convenience, irreparable injury and equity." 10. In the backdrop of position of law noticed as above, adverting to the facts of the present case, it is to be noticed that the petitioner is having khatedari rights over the land ad measuring 8 bighas 2 biswas comprising khasra no. 2/6. It is not disputed that the petitioner has occupied the land comprising khasra no. 23/8 unauthorisedly. In this regard, the site inspection report submitted by the Patwari, Sindhari is self explanatory. The possession of the petitioner, an unauthorised occupant, cannot be protected against the respondent- Gram Panchayat, which has been allotted the disputed land in accordance with the relevant rules. Thus, on the facts and in the circumstances of the case, the concurrent findings arrived at by the Assistant Collector, Sindhari and RAA, Barmer, affirmed by the Board of Revenue, cannot be said to be capricious or perverse. 11. Thus, on the facts and in the circumstances of the case, the concurrent findings arrived at by the Assistant Collector, Sindhari and RAA, Barmer, affirmed by the Board of Revenue, cannot be said to be capricious or perverse. 11. In Sarwan Singh's case (supra), relied upon by the learned counsel for the petitioner, the Board has arrived at the finding that the revision petition involves a substantial question to be decided by it and therefore, on the facts and circumstances of the case, this court while granting injunction, directed the Board of Revenue to decide the revision petition within a period of two months. Whereas, in the instant case, all the three revenue courts have arrived at a concurrent finding that the petitioner is unauthorised occupant over the Government land and he has no prima-facie case in his favour and thus, the said decision does not help the petitioner. 12. Similarly, in Bhanwarlal's case (supra), the petitioner was occupying the land pursuant to allotment made in his favour and therefore, the directions were issued not to disturb his possession. In the instant case, it is not the petitioner rather, the Gram Panchayat, Sindhari, is the allottee of the land and thus, the said decision also does not help the petitioner in any manner. 13. For the aforementioned reasons, in the considered opinion of this court, the order impugned passed by the Board of Revenue does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 14. In the result, the petition fails, it is hereby dismissed. No order as to costs.