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2024 DIGILAW 328 (RAJ)

Ratan Singh v. Gulab Singh

2024-02-21

MAHENDAR KUMAR GOYAL

body2024
JUDGMENT : Mahendar Kumar Goyal, J. - This writ petition has been preferred against the judgment and decree dated 30.08.1999 passed by the Board of Revenue Rajasthan, Ajmer (for brevity, "BoR") in appeal No.154/1995 whereby, while dismissing the appeal preferred by Shri. Ratan Singh (hereinafter referred to as, "defendant No.3") -the predecessor-in-interest of the petitioners, the judgment and decree dated 31.08.1995 passed by the Revenue Appellate Authority, Alwar (for brevity, "learned First Appellate Authority") dismissing the appeal No.296/1987 preferred against the judgment and decree dated 30.09.1976 passed by the Assistant Collector, Rajgarh, District Alwar (for brevity, "trial Court") decreeing the suit No.218/1972 filed by Shri. Gulab Singh (for brevity, "plaintiff")-the predecessor-in-interest of the respondents No.1/1 to 1/5 for permanent injunction, have been affirmed. 2. The relevant facts in brief are that the plaintiff filed a suit for permanent injunction against the defendant No.3 and the predecessor-in-interest of the proforma respondents No.2 to 8/defendants No.1 and 2 stating therein that he was in possession and cultivation of the land of Khasra no.165/3 measuring 3 bighas 19 biswas Village Mokroda, Tehsil Rajgarh, District Alwar since long. Alleging that the defendants have no concern with the subject agricultural land; but, are interfering in his use and occupation of the same. Therefore, the decree, as aforesaid, was prayed for. The defendants in their written statement, denying the averments made in the plaint, submitted that the defendant no.3 was Khatedar of the subject land and was in its possession. They prayed for dismissal of the suit. 3. On the basis of pleadings of the parties, the trial Court framed two issues including relief. The issue no.1 was to the effect as to whether the plaintiff was in possession and cultivation of the land of Khasra no.165/3. After recording evidence of the respective parties, the trial Court decreed the suit vide judgment dated 30.09.1976 deciding the issue no.1 in favour of the plaintiff holding that although, the defendant no.3 Ratan Singh was Khatedar of the subject land; but, it was in possession and cultivation of the plaintiff since long. The first appeal preferred thereagainst by the defendant no.3 was dismissed by the First Appellate Court vide judgment and decree dated 31.08.1995 and the second appeal preferred thereagainst by the defendant No.3 has also been dismissed by the BoR vide judgment and decree dated 30.08.1999. 4. The first appeal preferred thereagainst by the defendant no.3 was dismissed by the First Appellate Court vide judgment and decree dated 31.08.1995 and the second appeal preferred thereagainst by the defendant No.3 has also been dismissed by the BoR vide judgment and decree dated 30.08.1999. 4. Assailing the impugned judgment and decree, learned counsel for the petitioners submits that the Courts erred in granting the decree of permanent injunction in favour of the plaintiff ignoring and overlooking that the subject land was in the Khatedari of Ratan Singh, their ancestor. He further submits that it was not appreciated by the Courts that the suit simplicitor for injunction was not maintainable in absence of prayer for decree of declaration as the plaintiff was not owner of the subject property. He, therefore, prays that the writ petition be allowed, the judgment and decree dated 30.08.1999 be quashed and set aside and the suit be dismissed. 5. Per contra, learned counsel for the respondents No.1/1 to 1/5, supporting the findings recorded by the Courts, would submit that there are concurrent findings of facts by the three Courts whereby, the plaintiff has been found to be in possession of the subject property and entitled for the decree of permanent injunction. He further submits that since, the suit was simplicitor for injunction, in view of his long, peaceful and settled possession, the learned Courts did not err in decreeing the same. Learned counsel, relying upon a judgment of the Hon'ble Supreme Court of India in the case of Sadhana Lodh v. National Insurance Co. Ltd and another: AIR 2003 SC 1561 and a co-ordinate Bench judgment of this Court in the case of Ganga Ram @ Gangu v. Jagannath: 2008 WLC (Raj.) UC 478, would submit that since, the concurrent findings of facts recorded by the three authorities do not suffer from any patent illegality, perversity or manifest error of law/facts, no interference is warranted under writ jurisdiction. He, therefore, prays for dismissal of the writ petition. 6. Heard. Considered. 7. He, therefore, prays for dismissal of the writ petition. 6. Heard. Considered. 7. While decreeing the suit filed by the plaintiff for permanent injunction, appreciating and relying upon the oral as well as documentary evidence submitted by the respective parties, the trial Court has held that the plaintiff was in peaceful and settled possession of the subject property since long and the defendants had no right to interfere in the same, although, the defendant No.3 was its khatedar. It was observed that even from the testimony of the defendants' witnesses, it was reflected that the petitioner was in possession and cultivating the subject land. Therefore, he was held entitled for the decree of permanent injunction. These findings of facts have been affirmed by the First Appellate Court as well as by the BoR re-appreciating the evidence on record. Learned counsel for the petitioners has failed to point out any illegality or perversity in the concurrent findings of facts recorded by the three Courts based on cogent evidence on record. 8. A three-Judges Bench of the Hon'ble Supreme Court of India has, in the case of Sadhana Lodh (supra), held as under: "6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd, Chandigarh v. Nicolletta Rohtagi and others). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Ltd, Chandigarh v. Nicolletta Rohtagi and others). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution. 7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision." 9. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision." 9. A co-ordinate Bench of this Court has, in the case of Ganga Ram @ Gangu (supra), held as under: "12. The trial Court as well as the appellate Court, both have recorded a finding of fact while deciding an application for injunction and appeal that the defendants raised constructions of the disputed wall after filing of the suit. The said finding is a finding of fact and there is concurrent finding of fact in this regard by both the Courts below in favour of the plaintiff respondents, which cannot be interfered with by this Court, while sitting in extra-ordinary jurisdiction under Article 227 of the Constitution of India. The order dt. 26.07.2004 is nothing, except a consequential order passed by the trial Court for the compliance of its earlier order dt. 03.07.2002, which was affirmed by the Appellate Court. When this Court has not interfered with in the orders dt. 03.07.2002 and 18.07.2003 passed by both the Courts below in Writ Petition No. 5489/2004, then no interference can be made in the order dt. 26.07.2004 passed by the trial Court, which has been challenged by the petitioners in the Writ Petition No. 5357/2004." 10. In the backdrop of aforesaid precedential law, this Court finds no reason to interfere with the well reasoned judgments passed by the three Courts based on appreciation of evidence on record under its limited writ jurisdiction. 11. So far as submission of the learned counsel for the petitioner that the suit simplicitor for injunction in absence of a prayer for decree of declaration, was not maintainable is concerned, this Court finds no substance in the same. Since, the plaintiff has claimed the decree of permanent injunction based on his possessory title, the suit simplicitor for injunction was maintainable. 12. Resultantly, this writ petition is dismissed being devoid of merit.