Rama Nand and anr. Vs. Hukam Singh - Court Judgment

SooperKanoon Citationsooperkanoon.com/635750
SubjectCivil
CourtPunjab and Haryana High Court
Decided OnAug-31-2009
Judge Sham Sunder, J.
Reported in(2010)157PLR547
AppellantRama Nand and anr.
RespondentHukam Singh
DispositionPetition dismissed
Excerpt:
- sham sunder, j.1. this revision-petition is directed against the judgment dated 15.09.2004, rendered by the court of additional district judge (ii), bhiwani, vide which it accepted the appeal against the order dated 05.12.2003, rendered by the court of civil judge (junior division), charkhi dadri and allowed the application under order 39 rules 1 and 2 read with section 151 of the code of civil procedure, for the grant of ad interim injunction.2. the plaintiff (now respondent) claimed himself to be in possession of the suit land measuring 23 kanals 6 marlas, as fully detailed in the plaint. it was stated that the defendants (now appellants) threatened to dispossess him forcibly and illegally from the land, in dispute. the defendants were many a time, asked not to do so, but to no avail. ultimately, a suit for permanent injunction was filed.3. alongwith the suit, an application, under order 39 rules 1 and 2 read with section 151 of the code of civil procedure, for ad-interim injunction was filed.4. in reply, to the application, the defendants averred that they were the owners in possession of the land comprising killa nos.68//2, 3, 4/2, 9 and 12/1. it was stated that there was a common passage, in existence of 3 karams in width, situated on the southern side of killa no. 68//5/2 and on the northern side of killa no. 68/6 of the land of the parties, which was provided, during the course of consolidation. it was further stated that, under these circumstances, the plaintiff could not be said to be in possession of the passage.5. after hearing the counsel for the parties and, on going through the record, the trial court, dismissed the application under order 39 rules 1 and 2 read with section 151 of the code of civil procedure.6. feeling aggrieved, an appeal was preferred by the appellant/plaintiff, which was accepted by the appellate court, vide its order dated 15.09.2004.7. feeling dissatisfied, the instant revision-petition, has been filed by the revision petitioners/defendants.8. i have heard the counsel for the parties, and have gone through the documents, on record, carefully.9. the counsel for the revision-petitioners, submitted that, in an appeal against the order passed by the civil judge (junior division), charkhi dadri, on an application under order 39 rules 1 and 2 read with section 151 of the code of civil procedure, the interference of the appellate court is justified only, if the order, impugned is found to be arbitrary, capricious, perverse or in disregard of the sound legal principles and without considering all the relevant records. he further submitted that, on the mere possibility of the appellate court coming to a different conclusion, on the same facts and circumstances, will not justify the interference with such an order. he further submitted that the trial court took into consideration all the facts and circumstances, and came to the conclusion, that since the passage was provided, the plaintiff could not be said to be in possession of the same, and rightly declined the ad-interim injunction. he further submitted that the order passed by the trial court was neither perverse, nor capricious, nor in disregard of the sound legal principles, nor without considering all the relevant facts, on record. he further submitted that the appellate court, was, thus, wrong in interfering with such an order. he further submitted that the revision petition was, thus, liable to be accepted.10. the counsel for the respondent submitted that the trial court did not take into consideration the order dated 13.04.1962, passed by the settlement officer, whereby the area comprising khasra no. 1072(0-11) (earlier depicted as rasta) was withdrawn and the same was allotted to chhittar i.e. plaintiffs father. this order was also reflected in the mutation. he further submitted that the trial court, thus, fell into a grave error, in holding that the plaintiff was not in possession of the land, in dispute, and, as such, was not entitled to the injunction prayed for. he further submitted that the appellate court was, thus, right, in holding that the order being arbitrary, perverse and capricious having been passed without taking into consideration all the relevant records, was liable to be set aside. he further submitted that the order of the appellate court does not suffer from any illegality.11. after giving my thoughtful consideration, to the rival contentions, raised by the counsel for the parties, in my considered opinion, the revision-petition, deserves to be dismissed, for the reasons to be recorded hereinafter. the latest jamabandi, which was produced by the plaintiff, showed that he. was the owner in possession of 23 kanals 6 marlas of land, which was the area in dispute. a presumption of truth as was rightly held by the appellate court, is attached to the entries contained in the jamabandi, by virtue of section 44 of the punjab land revenue act until rebutted. a photocopy of the order dated 13.04.1962, passed by the settlement officer clearly reveals that the area comprising khasra no. 1072(0-11) (earlier depicted as passage/rasta), was withdrawn and the same was allotted to chhittar i.e. plaintiffs father. thereafter mutation no. 414 on the basis of the order, was also sanctioned. in lieu thereof the land comprising khasra no. 68//5/2/l was reserved for passage (rasta) exclusively. the appellate court was right in coming to the conclusion that the trial court took into consideration the aksajra of the year 1960-61, which was prepared long back and prior to the order dated 13.04.1962 and, as such, fell into a grave error in holding that the land comprising khasra no. 1 072(0-11) was passage (rasta). there existed passage on the northern side of killa nos.68//5/2/2 at the spot, for going to the land of the defendants/revision petitioners and the plaintiff had never obstructed the said passage. the appellate court was right, in coming to the conclusion, that there was a prima-facie case, in favour of the plaintiff; that the balance of convenience lay, in his favour; and that he will suffer an irreparable loss, in case ad-interim injunction was not granted in his favour. in this view of the matter, the appellate court rightly found the order of the trial court arbitrary, can pricious and perverse having been passed without taking into consideration the material documents on record. the order rendered by the appellate court, does not suffer from illegality, material irregularity, or perversity and, therefore, warrants no interference, of this court, in its revisional jurisdiction under article 227 of the constitution of india.12. for the reasons recorded above, the revision-petition, being devoid of merit, must fail, and the same is dismissed. the parties are directed to appear in the trial court on 24.09.2009 at 10.00 am positively.
Judgment:

Sham Sunder, J.

1. This revision-petition is directed against the judgment dated 15.09.2004, rendered by the Court of Additional District Judge (II), Bhiwani, vide which it accepted the appeal against the order dated 05.12.2003, rendered by the Court of Civil Judge (Junior Division), Charkhi Dadri and allowed the application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, for the grant of ad interim injunction.

2. The plaintiff (now respondent) claimed himself to be in possession of the suit land measuring 23 kanals 6 marlas, as fully detailed in the plaint. It was stated that the defendants (now appellants) threatened to dispossess him forcibly and illegally from the land, in dispute. The defendants were many a time, asked not to do so, but to no avail. Ultimately, a suit for permanent injunction was filed.

3. Alongwith the suit, an application, under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, for ad-interim injunction was filed.

4. In reply, to the application, the defendants averred that they were the owners in possession of the land comprising killa Nos.68//2, 3, 4/2, 9 and 12/1. It was stated that there was a common passage, in existence of 3 karams in width, situated on the southern side of killa No. 68//5/2 and on the northern side of killa No. 68/6 of the land of the parties, which was provided, during the course of consolidation. It was further stated that, under these circumstances, the plaintiff could not be said to be in possession of the passage.

5. After hearing the Counsel for the parties and, on going through the record, the trial Court, dismissed the application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure.

6. Feeling aggrieved, an appeal was preferred by the appellant/plaintiff, which was accepted by the Appellate Court, vide its order dated 15.09.2004.

7. Feeling dissatisfied, the instant revision-petition, has been filed by the revision petitioners/defendants.

8. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully.

9. The Counsel for the revision-petitioners, submitted that, in an appeal against the order passed by the Civil Judge (Junior Division), Charkhi Dadri, on an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, the interference of the Appellate Court is justified only, if the order, impugned is found to be arbitrary, capricious, perverse or in disregard of the sound legal principles and without considering all the relevant records. He further submitted that, on the mere possibility of the Appellate Court coming to a different conclusion, on the same facts and circumstances, will not justify the interference with such an order. He further submitted that the trial Court took into consideration all the facts and circumstances, and came to the conclusion, that since the passage was provided, the plaintiff could not be said to be in possession of the same, and rightly declined the ad-interim injunction. He further submitted that the order passed by the trial Court was neither perverse, nor capricious, nor in disregard of the sound legal principles, nor without considering all the relevant facts, on record. He further submitted that the Appellate court, was, thus, wrong in interfering with such an order. He further submitted that the revision petition was, thus, liable to be accepted.

10. The Counsel for the respondent submitted that the trial Court did not take into consideration the order dated 13.04.1962, passed by the Settlement Officer, whereby the area comprising khasra No. 1072(0-11) (earlier depicted as Rasta) was withdrawn and the same was allotted to Chhittar i.e. plaintiffs father. This order was also reflected in the mutation. He further submitted that the trial Court, thus, fell into a grave error, in holding that the plaintiff was not in possession of the land, in dispute, and, as such, was not entitled to the injunction prayed for. He further submitted that the Appellate Court was, thus, right, in holding that the order being arbitrary, perverse and capricious having been passed without taking into consideration all the relevant records, was liable to be set aside. He further submitted that the order of the Appellate Court does not suffer from any illegality.

11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision-petition, deserves to be dismissed, for the reasons to be recorded hereinafter. The latest jamabandi, which was produced by the plaintiff, showed that he. was the owner in possession of 23 kanals 6 marlas of land, which was the area in dispute. A presumption of truth as was rightly held by the Appellate Court, is attached to the entries contained in the jamabandi, by virtue of Section 44 of the Punjab Land Revenue Act until rebutted. A photocopy of the order dated 13.04.1962, passed by the Settlement Officer clearly reveals that the area comprising khasra No. 1072(0-11) (earlier depicted as passage/Rasta), was withdrawn and the same was allotted to Chhittar i.e. plaintiffs father. Thereafter mutation No. 414 on the basis of the order, was also sanctioned. In lieu thereof the land comprising khasra No. 68//5/2/l was reserved for passage (Rasta) exclusively. The Appellate Court was right in coming to the conclusion that the trial Court took into consideration the Aksajra of the year 1960-61, which was prepared long back and prior to the order dated 13.04.1962 and, as such, fell into a grave error in holding that the land comprising khasra No. 1 072(0-11) was passage (rasta). There existed passage on the northern side of killa Nos.68//5/2/2 at the spot, for going to the land of the defendants/revision petitioners and the plaintiff had never obstructed the said passage. The Appellate Court was right, in coming to the conclusion, that there was a prima-facie case, in favour of the plaintiff; that the balance of convenience lay, in his favour; and that he will suffer an irreparable loss, in case ad-interim injunction was not granted in his favour. In this view of the matter, the Appellate Court rightly found the order of the trial Court arbitrary, can pricious and perverse having been passed without taking into consideration the material documents on record. The order rendered by the Appellate Court, does not suffer from illegality, material irregularity, or perversity and, therefore, warrants no interference, of this Court, in its revisional jurisdiction under Article 227 of the Constitution of India.

12. For the reasons recorded above, the revision-petition, being devoid of merit, must fail, and the same is dismissed. The parties are directed to appear in the trial Court on 24.09.2009 at 10.00 AM positively.