Smt. Kamini Bala Patra Vs. Gourahari Patra and ors. - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - in other words, when the evidence on record was thoroughly and systematically considered by the trial court to record his satisfaction regarding existence of prima facie case, factum of possession in favour of the plaintiff and the invasion by the defendants satisfying to the requirement of balance of convenience and irreparable loss in favour of the plaintiff, the appellate court failed to exercise the jurisdiction so vested in him to analyse and appreciate the evidence on record, and giving undue importance to documents of no significance (as indicated above) for vacating the order of injunction.orderp.k. tripathy, j.1. heard.2. this civil revision is directed against judgment delivered on 12-8-2002 by learned ad hoc addl. district judge (fast track court), balasore in misc. appeal no. 107 of 2000.3. after service of notice, the opposite party members have not appeared to contest the case.4. petitioner is the plaintiff in title suit no. 758 of 2000-i of the court of civil judge (senior division). balasore. the disputed property, as per the description in schedule a of the plaint, is plot no. 3105 under m. s. khata no. 58 corresponding to sabik plot no. 2051 under sabik khata no. 468, measuring an area of ac. o. 68 decimals. plaintiff has claimed that property on the basis of three registered sale deeds and she has stated that she has purchased that land out of her 'stridhan' property, and the defendants who are her in-laws (being the brother and other agents of her husband) have unreasonably started disputing to her title and possession. accordingly, she filed the suit, inter alia, for the relief of permanent injunction. she filed an application under order 39, rules 1 and 2 of the code of civil procedure, 1908 (in short, 'the code'), which was registered as misc. case no. 468 of 2000. opposite party members, on receipt of notice, appeared and contested that misc. case. from the show cause filed by them, it appears that they claim the property on the basis of an oral agreement for sale. according to the defendants, when the plaintiffs husband was ill and the plaintiff was in need of money for the treatment of her husband and for completion of the half constructed house, they provided rs. 52,000/- (fifty two thousand), which was the consideration money fixed for transfer of the suit land. according to the defendants, such transaction took place as back as in the year 1989 but the sale deeds could not be obtained from the plaintiff in the meantime because she was busy in the treatment of her husband.5. along with the plaint, plaintiffs filed certified copy of the record of rights and the certified copy of the registered sale deeds besides a few rent-receipts and order passed on 11-7-2000 in a proceeding under section 144 of the code of criminal procedure (in short, 'cr. p. c.'). on the other hand opposite party members filed certified copy of the report of the police in the aforesaid proceeding under section 144, cr. p. c. and few municipal receipts, all of which have been granted in favour of the plaintiff. in one of those municipal receipts dated 26-2-1999 it has been noted that defendant no. 1, i.e., brother-in-law of the plaintiff deposited that amount of municipal tax.6. on appreciation of facts and documents, trial court granted temporary injunction in favour of the plaintiff and injuncted the defendants not to interfere with her possession of the suit land. the appellate court, on perusal of the aforesaid documents, found the report of the police officer more precious and credible than the revenue records and the sale deeds and on the basis of that, vacated that order of injunction on the ground that the (above noted) documents filed by the defendants prima faciely prove their possession.7. learned counsel for the petitioner argues that learned addl. district judge forgetting all norms provided for appreciating evidence, employed conjecture to record a finding of possession in favour of the defendants, and that being illegal the impugned order is liable to be set aside and the order of the civil judge should be restored to file.8. the above noted argument advanced by the petitioner needs careful consideration, because a wrong factual finding of the trial or the appellate court per se does not entitle the revisional court to interfere with the factual finding unless the revisional court finds that such erroneous factual finding comes within the arena of jurisdictional error as enumerated in clause (c) of sub-rule (1) in section 115 of the code. it be noted here that the courts below having the jurisdiction to consider the dispute relating to grant or refusal of temporary injunction, in that context if they or any of them while acting in exercise of such jurisdiction passed the order which is illegal or suffers from material irregularity, then only the revisional court shall interfere with such factual finding. therefore, a factual finding which is not supported by evidence on record or contrary to the evidence on record, that is to say, a finding infested with perversity and similarly a finding based on conjecture can be regarded as a finding recorded either illegally or with material irregularity.9. as already noted, the trial court while appreciating the evidence on record, found a prima facie case of title and possession in favour of the plaintiff, because she has purchased the land, the same stands recorded in her name and rents are being paid by her, the appellate court on the other hand without finding any error in the aforesaid finding relating to the right, title and interest of the plaintiff, recorded the finding that the factum of possession is prima faciely available in favour of the defendants inasmuch as they possess the original sale deeds which is an indication of the oral agreement for sale and the bunch of rent receipts produced by them from the municipal authority indicate that they are in possession of the property. on perusal of the municipal receipts it is seen that the municipal tax receipts have been granted in favour of the plaintiff for the entire period and only in one receipt, which was granted on 26-2-1999, name of defendant no. 1 has been noted as the person who deposited the money on behalf of the plaintiff. when in other municipal tax receipts including the receipt granted on 2-3-2000 it is not indicated that anybody else has deposited the tax, that one receipt prima faciely does not rebut to the factum of possession as against the plaintiff. in the proceeding under section 144, cr. p. c. (misc. case no. 36 of 2000 of the court of executive magistrate, jaleswar) on 11-7-2000 a prohibitory order was passed by learned executive magistrate restraining the second party-members, i.e., the defendants to enter upon the case land, i.e., the suit land. there is nothing on record to show or suggest that such prohibitory order was rescinded or altered or vacated within a period of two months. therefore, on the face of that order of the executive magistrate the report dated 16-8-2000 of the o.i.c. of raibania police station reporting about the factum of possession in favour of the defendants appears to be not acceptable. in other words, when the evidence on record was thoroughly and systematically considered by the trial court to record his satisfaction regarding existence of prima facie case, factum of possession in favour of the plaintiff and the invasion by the defendants satisfying to the requirement of balance of convenience and irreparable loss in favour of the plaintiff, the appellate court failed to exercise the jurisdiction so vested in him to analyse and appreciate the evidence on record, and giving undue importance to documents of no significance (as indicated above) for vacating the order of injunction. the factum of possession in favour of the defendants recorded by him is not supported by evidence on record. thus, that finding suffers from perversity. hence, the impugned judgment of the appellate court is set aside and the civil revision is allowed. in the result, the order of temporary injunction granted by learned civil judge (sr. division), balasore is restored to file.send back the l.c.r. immediately to the court below.

Judgment:
ORDER

P.K. Tripathy, J.

1. Heard.

2. This civil revision is directed against judgment delivered on 12-8-2002 by learned Ad hoc Addl. District Judge (Fast Track Court), Balasore in Misc. Appeal No. 107 of 2000.

3. After service of notice, the opposite party members have not appeared to contest the case.

4. Petitioner is the plaintiff in Title Suit No. 758 of 2000-I of the Court of Civil Judge (Senior Division). Balasore. The disputed property, as per the description in Schedule A of the plaint, is Plot No. 3105 under M. S. Khata No. 58 corresponding to Sabik Plot No. 2051 under Sabik Khata No. 468, measuring an area of Ac. O. 68 decimals. Plaintiff has claimed that property on the basis of three registered sale deeds and she has stated that she has purchased that land out of her 'Stridhan' property, and the defendants who are her in-laws (being the brother and other agents of her husband) have unreasonably started disputing to her title and possession. Accordingly, she filed the suit, inter alia, for the relief of permanent injunction. She filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908 (in short, 'the Code'), which was registered as Misc. Case No. 468 of 2000. Opposite party members, on receipt of notice, appeared and contested that Misc. Case. From the show cause filed by them, it appears that they claim the property on the basis of an oral agreement for sale. According to the defendants, when the plaintiffs husband was ill and the plaintiff was in need of money for the treatment of her husband and for completion of the half constructed house, they provided Rs. 52,000/- (fifty two thousand), which was the consideration money fixed for transfer of the suit land. According to the defendants, such transaction took place as back as in the year 1989 but the sale deeds could not be obtained from the plaintiff in the meantime because she was busy in the treatment of her husband.

5. Along with the plaint, plaintiffs filed certified copy of the Record of Rights and the certified copy of the registered sale deeds besides a few rent-receipts and order passed on 11-7-2000 in a proceeding under Section 144 of the Code of Criminal Procedure (in short, 'Cr. P. C.'). On the other hand opposite party members filed certified copy of the report of the police in the aforesaid proceeding under Section 144, Cr. P. C. and few Municipal receipts, all of which have been granted in favour of the plaintiff. In one of those Municipal receipts dated 26-2-1999 it has been noted that defendant No. 1, i.e., brother-in-law of the plaintiff deposited that amount of Municipal tax.

6. On appreciation of facts and documents, trial Court granted temporary injunction in favour of the plaintiff and injuncted the defendants not to interfere with her possession of the suit land. The appellate Court, on perusal of the aforesaid documents, found the report of the police officer more precious and credible than the revenue records and the sale deeds and on the basis of that, vacated that order of injunction on the ground that the (above noted) documents filed by the defendants prima faciely prove their possession.

7. Learned counsel for the petitioner argues that learned Addl. District Judge forgetting all norms provided for appreciating evidence, employed conjecture to record a finding of possession in favour of the defendants, and that being illegal the impugned order is liable to be set aside and the order of the Civil Judge should be restored to file.

8. The above noted argument advanced by the petitioner needs careful consideration, because a wrong factual finding of the trial or the appellate Court per se does not entitle the revisional Court to interfere with the factual finding unless the revisional Court finds that such erroneous factual finding comes within the arena of jurisdictional error as enumerated in Clause (C) of Sub-rule (1) in Section 115 of the Code. It be noted here that the Courts below having the jurisdiction to consider the dispute relating to grant or refusal of temporary injunction, in that context if they or any of them while acting in exercise of such jurisdiction passed the order which is illegal or suffers from material irregularity, then only the revisional Court shall interfere with such factual finding. Therefore, a factual finding which is not supported by evidence on record or contrary to the evidence on record, that is to say, a finding infested with perversity and similarly a finding based on conjecture can be regarded as a finding recorded either illegally or with material irregularity.

9. As already noted, the trial Court while appreciating the evidence on record, found a prima facie case of title and possession in favour of the plaintiff, because she has purchased the land, the same stands recorded in her name and rents are being paid by her, The appellate Court on the other hand without finding any error in the aforesaid finding relating to the right, title and interest of the plaintiff, recorded the finding that the factum of possession is prima faciely available in favour of the defendants inasmuch as they possess the original sale deeds which is an indication of the oral agreement for sale and the bunch of rent receipts produced by them from the Municipal authority indicate that they are in possession of the property. On perusal of the Municipal receipts it is seen that the Municipal tax receipts have been granted in favour of the plaintiff for the entire period and only in one receipt, which was granted on 26-2-1999, name of defendant No. 1 has been noted as the person who deposited the money on behalf of the plaintiff. When in other Municipal tax receipts including the receipt granted on 2-3-2000 it is not indicated that anybody else has deposited the tax, that one receipt prima faciely does not rebut to the factum of possession as against the plaintiff. In the proceeding under Section 144, Cr. P. C. (Misc. Case No. 36 of 2000 of the Court of Executive Magistrate, Jaleswar) on 11-7-2000 a prohibitory order was passed by learned Executive Magistrate restraining the second party-members, i.e., the defendants to enter upon the case land, i.e., the suit land. There is nothing on record to show or suggest that such prohibitory order was rescinded or altered or vacated within a period of two months. Therefore, on the face of that order of the Executive Magistrate the report dated 16-8-2000 of the O.I.C. of Raibania Police Station reporting about the factum of possession in favour of the defendants appears to be not acceptable. In other words, when the evidence on record was thoroughly and systematically considered by the trial Court to record his satisfaction regarding existence of prima facie case, factum of possession in favour of the plaintiff and the invasion by the defendants satisfying to the requirement of balance of convenience and irreparable loss in favour of the plaintiff, the appellate Court failed to exercise the jurisdiction so vested in him to analyse and appreciate the evidence on record, and giving undue importance to documents of no significance (as indicated above) for vacating the order of injunction. The factum of possession in favour of the defendants recorded by him is not supported by evidence on record. Thus, that finding suffers from perversity. Hence, the impugned judgment of the appellate Court is set aside and the Civil Revision is allowed. In the result, the order of temporary injunction granted by learned Civil Judge (Sr. Division), Balasore is restored to file.

Send back the L.C.R. immediately to the Court below.