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2022 DIGILAW 353 (JK)

Gopal Singh v. Sikander Singh

2022-07-27

PUNEET GUPTA

body2022
JUDGMENT : 1. Issue notice. 2. Mr. G.S. Thakur, Advocate accepts notice on behalf of respondent Nos. 1 to 6. 3. The grievance of the petitioners-plaintiffs in the present petition is that though the plaintiffs are in possession of the suit property yet the trial court had passed the order of status quo with regard to the suit property and on appeal filed by the respondents-defendants in the suit set aside the order of the Tribunal. The revenue entries were in favour of the plaintiffs for a long time before the same illegally came to be changed in favour of the defendants. The report of the Patwari and authenticated by Tehsildar and further the photographs on the file do make out the possession of the plaintiffs in the suit property. The petitioners are particularly aggrieved of the order passed by the appellate court on the ground that the order itself is contradictory and not as per the record. 4. Mr. Sanjay Kakkar, Advocate appearing on behalf of the petitioners has argued on the aforesaid lines. 5. Mr. G.S. Thakur, Advocate appearing for the private respondents-defendants has argued that the writ is not maintainable. The possession of the respondents is manifest through the documents and both the courts had recorded the prima facie possession of the defendants in the suit property. The appellate court has not erred in passing the impugned order whereby the order of status quo passed by the trial court in the application filed for interim injunction has been set aside. 6. The petitioners, plaintiffs before the trial court, have filed the suit pleading their possession in 10 kanals of land falling in Khasra Nos. 165 and 166 respectively at village Sungal, Akhnoor and also claimed to have raised construction in the suit property. The alleged interference being caused by the defendants forced the plaintiffs to file the suit against the defendants. The prayer made in the suit is for permanent prohibitory injunction restraining the defendants from interfering into the peaceful possession of the plaintiffs or forcibly dispossessing the plaintiffs from the land or causing damage to the structure raised in the land in question. 7. The court in the first instance is to deal with the argument of learned counsel for the respondents-defendants that the present petition is not maintainable keeping in view the facts and circumstances of the case. 7. The court in the first instance is to deal with the argument of learned counsel for the respondents-defendants that the present petition is not maintainable keeping in view the facts and circumstances of the case. It is trite proposition of law that the court is not to exercise its supervisory jurisdiction under Article 227 of the Constitution of India only on the premise that some error has crept in the orders passed by the courts below and one of the parties to the proceedings is to suffer. It is only when there is miscarriage of justice which is apparent from the record that the court exercises its jurisdiction under Article 227 of the Constitution. The court cannot reverse the findings of the court below only also for the reason that the courts below should have interpreted the facts brought on record in a particular manner. The discretion has to be exercised by the court sparingly and not in a ordinary course. The court can rely upon the judgment passed by the Hon'ble Apex Court in Radhey Shyam & Anr. v. Chhabi Nath & Ors. (Civil Appeal No. 2548 of 2009 decided on 26.02.2015) while deciding the petition in hand. 8. The trial court vide its order dated 31.08.2021 while deciding the application for interim relief directed the parties to the suit to maintain status quo on spot till disposal of the main suit. The court while passing the said order also held that the defendants are prima facie in possession of the suit land. The appeal was preferred by the defendants against the said order of the trial court. The appellate court vide order dated 31.08.2021 while disposing of the appeal set aside the order of the trial court. 9. The trial court and the appellate court while deciding the application for interim relief and the appeal respectively have held the possession of the petitioners-defendants in the suit property. Both the courts have recorded the findings on the basis of the documents placed on record. The reliance placed by the courts below on the documents filed by the respondents is not misplaced as the possession of the respondents in the suit property is recorded in the revenue record. Both the courts have recorded the findings on the basis of the documents placed on record. The reliance placed by the courts below on the documents filed by the respondents is not misplaced as the possession of the respondents in the suit property is recorded in the revenue record. The finding of fact recorded by the courts below does not require any further scrutiny by this court as there is no glaring error made by both the courts which may require interference by this court. The argument of the learned counsel for the petitioners herein is that the report of the Tehsildar dated29.01.2021 favours the petitioners and therefore prima facie the possession of the plaintiffs' stands proved. The trial court has particularly recorded that the report of Patwari is prepared at the back of defendants and cannot have overriding effect on the long standing revenue entries in favour of the defendants and the same cannot be faulted with in the present petition. The learned counsel for the petitioners has tried to convince the court of their possession on the basis of the photographs which the petitioners have annexed with the record. To say the least, the photographs do not and cannot by themselves show that the structures as shown in the photograp hsare raised by the petitioners. 10. The argument of the learned counsel for the petitioners herein is that the appellate court has stated in its order that both the parties to the suit are adversely raising their claims vis-a-vis possession in the suit land which means that the subject matter of the suit is required to be protected at least by maintaining order of status quo. The court is again not in agreement with the submission made on behalf of the petitioners. The petitioners cannot take any mileage out of the said observations of the appellate court. The appellate court has rightly made the aforesaid observation as the assertion of the plaintiffs of their possession in the suit property has been countered by the respondents-defendants in their written statement. Nothing more should be read into the aforesaid observation of the appellate court. 11. The order impugned of the appellate court is well reasoned order. The appellate court has rightly made the aforesaid observation as the assertion of the plaintiffs of their possession in the suit property has been countered by the respondents-defendants in their written statement. Nothing more should be read into the aforesaid observation of the appellate court. 11. The order impugned of the appellate court is well reasoned order. The court has not committed any illegality while holding that when the prima facie possession of the plaintiff is recorded in the order by the trial court, there was no occasion to pass the order of status quo by the trial court. The appellate court has also fallen in line with the finding of the trial court that prima facie the possession of the respondents-defendants is made out from the record and particularly the documents which are placed on record. There is no manifest error in recording the findings on factual aspects of the case while deciding the application for interim relief by the trial court. The order of the appellate court also does not require to be interfered with. No manifest miscarriage of justice is discernable from the order of the appellate court impugned in the present petition. The petitioners have failed to make out a case which may require interference by the court in exercise of its supervisory powers under Article 227 of the Constitution. 12. The petition is without merit and is, accordingly, dismissed.