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Prabhakar Digambar Kulkarni and ors. Vs. Dayaram Gopalji - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 742 of 1977
Judge
Reported inAIR1980MP125
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rule 1
AppellantPrabhakar Digambar Kulkarni and ors.
RespondentDayaram Gopalji
Appellant AdvocateS.D. Sanghi, Adv.
Respondent AdvocateS.L. Garg, Adv.
DispositionPetition allowed
Cases ReferredManoharlal Chopra v. Seth Hiralal
Excerpt:
.....to dilate on the aforesaid principles because they are well settled. ordinarily a party in whose favour a decree or order has been passed holds a prima facie title to the property or the right which was the subject-matter of the decree and very strong evidence would be necessary to rebut the presumption of prima facie title in favour of the decree-holder. merely because a party chooses to file a suit challenging the decree or order on certain grounds, would not suffice to destroy the presumption in his favour and a very heavy burden would lie on the applicant to produce strong and cogent prima facie evidence to satisfy the court that the grounds on which the decree or order is challenged are fairly strong and that there is a reasonable possibility of the success of such suit...........case in favour of the applicant will require serious consideration. ordinarily a party in whose favour a decree or order has been passed holds a prima facie title to the property or the right which was the subject-matter of the decree and very strong evidence would be necessary to rebut the presumption of prima facie title in favour of the decree-holder. decree-holder should not ordinarily be restrained from enjoying the fruits of the decree obtained by him after a successful litigation. merely because a party chooses to file a suit challenging the decree or order on certain grounds, would not suffice to destroy the presumption in his favour and a very heavy burden would lie on the applicant to produce strong and cogent prima facie evidence to satisfy the court that the grounds on.....
Judgment:
ORDER

1. This revision petition has been filed by the petitioners against an order passed by the Additional District Judge, Mandleshwar, maintaining an order of temporary injunction granted in favour of the respondent.

2. The facts giving rise to the present revision petition are that this dispute pertains to agricultural land measuring 34.06 acres, situated in Maheshwar. This land stood in the name of Saraswatibai wd/o Digambar Rao as a Pakka tenant under the Madhya Bharat Land Revenue and Tenancy Act, 1950. Applicant No. 1 is the son of applicant No. 2 and applicants 2 and 3 are grandsons of Saraswatibai. Saraswatibai made a gift of this land in favour of applicants 2 and 3 by a registered deed executed by her on 20-6-1960. She died on 25-2-1968. The non-applicant claims to be in possession of this land as a sub-tenant and, therefore, claims to have acquired the rights of an occupancy tenant and eventually a Bhumiswami on coming into force of the M. P. Land Revenue Code, 1959, on 2-10-1959.

3. Saraswatibai had granted to non-applicant Dayaram a sub-lease for the said land for the period of five years from Samvat 2010 to Samvat 2014. This was granted by an unregistered document. On expiry of one year Saraswatibai granted a fresh lease to the non-applicant Dayaram for the remaining period of four years and Dayaram executed a registered Kabuliyat in favour of Saraswatibai on Ashwin Sudi 3, Samvat 2011, corresponding to 30th of September, 1954. Dayaram did not restore possession of the land to Saraswatibai even after the expiry of the lease and therefore, shefiled a suit for ejectment against him on 18-6-1959 in the Court of the Naib Tahsildar, Maheshwar, under Section 76 of the M. B. Land Revenue and Tenancy Act. This was contested on various grounds. The non-applicant also put up his claim that as during the pendency of these proceedings the M. P. Land Revenue Code had come into force, therefore, on 2-10-1959 he acquired the rights of an occupancy tenant.

4. The Naib-Tahsildar before whom these proceedings were pending ultimately passed an order for eviction on 24-1-1970 against the non-applicant. Against this order the non-applicant preferred an appeal to the Collector and thereafter to the Commissioner and before both the appellate Courts he failed and the order passed by the Naib Tahsildar was maintained. Thereafter the non-applicant preferred a revision petition before the Board of Revenue and by order dated 6-9-1972 the Board also dismissed the revision petition by holding that as the lease granted by Saraswatibai was after the M. B. Land Revenue and Tenancy Act came into force, this lease was, therefore, protected under Section 74, as Saraswatibai was a widow and, therefore, the Board came to the conclusion that the non-applicant Dayaram did not acquire the rights of an occupancy tenant on 2-10-1959. During this period when these revenue proceedings were pending until 6-9-1972 when finally the Board decided the matter against the non-applicant, till that date he continued to be in possession. After the decision of the Board a Miscellaneous petition was filed in this Court on 15-11-1972, which was M. P. No. 146 of 1972. But when this petition came up for hearing before this Court on 23-4-75 it was alleged that the petitioner, i.e. the non-applicant wanted to withdraw the petition and, therefore, the proceedings before this Court and the writ petition came to an end. It appears that during this period also the non-applicant remained in possession and, threfore, on 23-4-1975 the writ petition was dismissed by this Court and on 28-4-1975 the non-applicant filed the present suit for declaration of his title and injunction. A declaration also was sought that the order of eviction passed by the Revenue Tribunals was without jurisdiction. The trial Court by its order dated 2-5-1975 granted a temporary injunction in favour of the non- applicant, which was later on confirmed after hearing both the parties and on appeal the learned lower Appellate Court also maintained that order by the impugned judgment dated 13-7-1977.

5. It appears that after Saraswatibai died the applicants 2 and 3 to whom the lands were gifted were also brought on record and it is, therefore, that the present revision petition has been filed by the present petitioners. It was contended by the learned counsel for the petitioners that the Revenue Tribunals have passed an order for delivery of possession against the non-applicant and in favour of the petitioners. That order has been maintained by all the Revenue Tribunals, from the Naib-Tahsildar to the Board of Revenue and the non-applicant-plaintiff has been avoiding enforcement of that order for all these years. He first filed a writ petition and then withdrew it and has now filed the present suit According to the learned counsel, therefore, grant of a temporary injunction in favour of the non-applicant clearly is a negation of the order passed by the competent Tribunal, which has been maintained by the highest Tribunal of the State. It was, therefore, contended that no temporary injunction could be granted in such a case, as the provisions contained in Order 39, Rules 1 and 2 would not be attracted. It was also contended that this Court has consistently taken the view that an injunction to restrain a party to derive the benefit out of the order of a competent Tribunal cannot be issued. It was also contended that in spite of a decree for possession in favour of the petitioners for all these years the non-applicant has been successful in not getting the order executed and still in such a case the learned Court below while granting a temporary injunction even did not put conditions which may be useful if the plaintiff-non-applicant ultimately fails in these proceedings. It was also contended that under the scheme of the Madhya Bharat Land Revenue and Tenancy Act for eviction of a subtenant whose lease has come to an end the Revenue Tribunals were only competent to entertain such a suit and even if it is ultimately held that Civil Courts have also jurisdiction, still it is not the ground for grant of a temporary injunction.

6. Learned counsel for the non-applicant seriously contended that the decision of the Revenue Tribunal is subject to an ultimate decision by the Civil Court about the rights of parties and referred to a number of decisions of this Court examining in what cases the Civil Courts will have jurisdiction. He also contended that it is no doubt true that there are decisions of this Court, wherein it has been ruled that where there is an order of competent Tribunal an injunction to restrain the execution thereof should not be granted. But, he referred to a number of decisions to indicate that even in cases where there is an order or a decree of a competent Court in appropriate cases a temporary injunction could be granted. He also contended that this petition being a revision under Section 115, Civil P. C., this Court ordinarily will not interfere unless there is an error of jurisdiction.

7. Learned Courts below granted the temporary injunction on the finding that the plaintiff-non-applicant is in possession on the date of the suit, but did not consider the question as to whether when there is an order by a competent Tribunal to deliver possession it is proper for the Civil Court to grant a temporary injunction as under Order 39, Rules 1 and 2 no injury could be alleged when an order passed by a competent Tribunal is executed. Learned Judge of the lower appellate Court observed:

(The matter being in Hindi and having no facilities for printing Hindi verson, we regret to omit it -- Ed.) This appears to be the basis for grant of an injunction. Apparently, the learned Judge did not consider that the petitioner has an order in his favour for delivery of possession from a competent Revenue Tribunal. Learned Judge has disposed of the decisions of the Revenue Tribunals by a single sentence by saying:'

(The matter being in Hindi is omitted--Ed.)

It is, therefore, clear that the learned Courts below did not consider at all the question of prima facie case and also the question about injury that could be alleged within the meaning of the language of Order 39, Rules 1 and 2. Order 39, Rule 1, Sub-clause (c) provides that :

' (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit'

Apparently, Clauses (a) and (b) will not be applicable for application of this clause and it is necessary to come to a finding that the defendant threatens or otherwise causes injury to the plaintiff in relation to any property in dispute in the suit. It is , therefore, apparent that the learned Court below did not at all apply its mind to this aspect of the matter. What is apprehended in this case is that the defendant-petitioner by executing the order passed by the Revenue Tribunals would take possession of the agricultural lands and this could not be said to be an injury within the meaning of Sub-clause (c). But the learned Court below did not even bother to consider this question. Learned Court below, it appears, felt that because a suit of permanent injunction is filed and the plaintiff is in possession, this is enough for grant of a temporary injunction in his favour. This apparently goes to show that the learned Judge did not consider what was necessary while exercising the jurisdiction under Order 39, Rule 1 and. therefore, the learned Court below committed a material irregularity in exercise of jurisdiction.

8. It is no doubt true that ordinarily if on merits an injunction has been granted, this Court would not interfere. But where the learned Courts below failed to consider the question which is necessary and thereby committed material irregularity, this Court can interfere in such cases exercising its revisional jurisdiction.

9. Learned counsel for both the parties referred to a number of decisions of this Court wherein the question of grant of an injunction after a decree or an order by a competent Court or Tribunal has been passed, have been considered. The Division Bench decision on which reliance is placed by the learned lower appellate Court and also by the learned counsel for the non-applicant is Surendra Singh v. Lal Sheoraj Bahadursingh (1975 MPLJ 57) : (AIR 1975 Madh Pra 85). In this decision a Division Bench of this Court has placed reliance on a decision of their Lordships of the Supreme Court in Manoharlal Chopra v.Seth Hiralal, (AIR 1962 SC 527). This decision lays down that ordinarily an injunction cannot be granted to restrain a party from executing a decree passed by a competent Court except in cases where it is allegged that the decree has been obtained by fraud. In this decision it was observed:

'It is not necessary to dilate on the aforesaid principles because they are well settled. Where a party files a suit to set aside a decree on the ground of fraud or to have it adjudged void and uneforceable on certain grounds and also files an application for a temporary injunction to restrain the decree-holder from executing the decree, the question of prima facie case in favour of the applicant will require serious consideration. Ordinarily a party in whose favour a decree or order has been passed holds a prima facie title to the property or the right which was the subject-matter of the decree and very strong evidence would be necessary to rebut the presumption of prima facie title in favour of the decree-holder. Decree-holder should not ordinarily be restrained from enjoying the fruits of the decree obtained by him after a successful litigation. Merely because a party chooses to file a suit challenging the decree or order on certain grounds, would not suffice to destroy the presumption in his favour and a very heavy burden would lie on the applicant to produce strong and cogent prima facie evidence to satisfy the Court that the grounds on which the decree or order is challenged are fairly strong and that there is a reasonable possibility of the success of such suit.'

It is not disputed that in the present case there is no allegation that the orders of the Revenue Tribunals have been obtained by fraud. This Division Bench decision, therefore, also instead of helping the respondent helps the petitioners. In this decision reliance has been placed on a decision of the Supreme Court in Manoharlal Chopra v. Seth Hiralal, (AIR 1962 SC 527), wherein it has been held that if to the facts of a case provisions contained in Order 39. Rules 1 and 2 are not applicable, the Court in appropriate cases may grant a temporary injunction in exercise of inherent powers and it is in this context that the Division Bench decision considered the question about the grant of a temporary injunction torestrain a party from executing the decree as it is difficult to contend how such an injunction could be granted under Order 39, Rules 1 and 2. So far as the case in hand is concerned, learned Court below did not even apply its mind as to whether an injunction could be granted or could not be granted under Order 39, Rule 1 and, therefore, a question of exercise of inherent powers is not at all considered. Apparently, therefore, the Court below has failed to exercise jurisdiction vested in it by law while granting a temporary injunction in the present case. The order, therefore, cannot be maintained.

10. The revision petition is, therefore, allowed. The orders granting a temporary injunction to the non-applicant by the Courts below are set aside. The petitioners shall be entitled to the costs of this revision petition. Counsel's fee as per the schedule, if certified.


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