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Chhaganlal Vs. Nane Shah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Nos. 361 and 362 of 1976
Judge
Reported inAIR1983Raj6
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 39, Rule 1; Code of Criminal Procedure (CrPC) , 1973 - Sections 145 and 145(1)
AppellantChhaganlal
RespondentNane Shah
Appellant Advocate A.L. Chopra, Adv.
Respondent Advocate M.L. Calla, Adv.
DispositionRevision petition allowed
Cases ReferredKaliprasad Das v. Gadadhar
Excerpt:
.....either illegally or with material irregularity. to my mind, even if ramkumar would have filed a suit for declaration of his rights in the suit land, which he has not filed perhaps it would not have been possible to hold in the facts and circumstances of the case and material on record that there was a fairly good prima facie case and the burden which is thrown on a party, as a result of an order in favour of other party under section 145, criminal procedure code. in the aforesaid case of the full bench of assam high court, it has been clearly observed that a distinction has to be made in cases where the magistrate holds under section 145 that a party was in actual physical possession of the property on the date of the proceedings and those where the party is deemed to be in..........temporary injunction was issued as prayed for which later on was confirmed. as in the earlier suit filed by the plaintiff, the tenants of nane shah, namely, chhaganlal, smt. ratandevi, mangilal. hazarjlal, prabhulal, who were in possession as tenants at hip time when the subject of dispute was attached by the city magistrate in proceedings under section 145. cr. p. c. were net parties and were also ordered to be given possession by this court, the second suit no. 281/71 was filed by the plaintiff against nane shah and the aforesaid tenants and in that suit also an application under order xxxix rules 1 and 2. c pc was filed and a temporary injunction in the terms staled earlier, was passed re-straining nane shah and his abovenamed tenants from dispossessing the plaintiff under the.....
Judgment:
ORDER

M.B. Sharma, J.

1. Both the revision petitions arise out of the judgment dated March 18, 1976, of the learned Additional District Judge No. 2, Jodhpur under which the learned Judge dismissed the Civil Miscellaneous Appeals Nos. 27/72 and 26/72 preferred before him out of miscellaneous proceedings under Order XXXIX Rules 1 and 2, C. P. C arising out of two suits Nos. 281/71 and 258/71, filed by Manoharsingh, non-petitioner No. 1 (hereinafter referred to as 'the plaintiff') in the trial court. Under the aforesaid judgment, the learned Judge affirmed the order of the trial court issuing a temporary injunction against the petitioners and others restraining them from taking possession of the suit property under any order passed in Criminal Miscellaneous Case No. 60/660 (of This Court) under Section 145, Cr. P. C. or otherwise fill the decision of the suits.

Plaintiff, firstly, filed a suit No. 258/71 in the court of learned Munsif against Nane Shah and Shankerlal, Smt. Ratandevi, Smt. Prembai, all legal representatives of one Ramkumar Garg and also against Kahisingh for a declaration that he is a tenant of Ramkumar Garg and for permanent injunction. In the suit, it was stated that he has been inducted as a tenant by Kalusingh general power of attorney holder (Mukhtiar Aam) of Ram Kumar and he was not bound by the order of the criminal court passed in proceeding's under Section 145, Cr. P. C. under which it was directed that the possession be delivered to Nane Shah and his tenants. A relief for permanent injunction was also claimed that he should not he dispossessed under the order at the criminal court and can only be evicted by due process of law. An application for temporary injunction under Order XXXIX, Rules 1 & 2, C. P. C. was filed and an ex parte temporary injunction was issued as prayed for which later on was confirmed. As in the earlier suit filed by the plaintiff, the tenants of Nane Shah, namely, Chhaganlal, Smt. Ratandevi, Mangilal. Hazarjlal, Prabhulal, who were in possession as tenants at hiP time when the subject of dispute was attached by the City Magistrate in proceedings under Section 145. Cr. P. C. were net parties and were also ordered to be given possession by this Court, the second suit No. 281/71 was filed by the plaintiff against Nane Shah and the aforesaid tenants and in that suit also an application under Order XXXIX Rules 1 and 2. C PC was filed and a temporary injunction in the terms staled earlier, was passed re-straining Nane Shah and his abovenamed tenants from dispossessing the plaintiff under the order of the criminal court. That order was also later on confirmed. Two appeals were filed and the learned Additional District Judge, Jodhpur. as already stated earlier, affirmed the orders of temporary injunction issued by the trial court in both the suits. Two revisions have been preferred in this Court and as identical questions are involved, they are being disposed of together.

2. The contention of the learned advocate for Nane Shah and his tenants is that there was an order if the criminal court in proceedings under Section 145, Cr. P. C. that on the day the subject of the dispute was attached Nane Shah and his abovenamed five tenants were in possession and that the possession should be handed over to them. He therefore, submits that in view of the aforesaid order both the courts have erred in holding that there was a prima facie case in favour of the plaintiff. According to him in arriving at a finding that there was a prima facie case in favour of the plaintiff, the lower courts below have not taken into consideration some material evidence on record and, therefore, the aforesaid finding of The learned courts is vitiated. It is also contended that in view of a clear finding of the High Court while dropping the proceedings under Section 145. Cr. P. C under order dated April 20, 1971, that on the day the suit property was attached in proceedings under Section 145. Cr. P. C. Nane Shah and his abovenamed five tenants were in possession and that possession should be handed over to them, the learned Munsif could not have issued a temporary injunction and a fairly good prima facie case was required to grant the in junction in favour of the plaintiff. Mr. Calla, the learned counsel for the plaintiff in the forefront has raised a preliminary objection that no jurisdictional illegality or error has been committed by the trial court as well as the lower appellate court in issuing an injunction and, therefore, in revision under Section 115. C. P. C. this Court has no powers to set aside the order of temporary injunction, issued in favour of the plaintiff.

3. Before I take up the preliminary objection raised by Mr. Calla and the other submission made before me, it is necessary to state some relevant facts in brief as they, in my opinion, have a material bearing. They are as follows:--

There is a land known as Chand Shah-Ka-Takiya situated outside Sojatigate, Jodhpur. Naneshah who is one of the petitioners in the revisions, was in possession of the land as owner whereof. On June 20, 1954, said Naneshah sold a portion measuring 11,112 sq. yards out of the aforesaid land to Ramkumar Garg, who is now represented by non-petitioners Shankerlal and two others. He is said to have delivered possession to Ramkumar. Naneshah along with his wife Smt. Hafiza continued to reside on a portion of land as tenant of Ramkumar and is also said to have instructed the other tenants that he has sold the land to Ramkumar and they should pay rent in future to him. But, he refused to execute the sale-deed and an endorsement to that effect was made by the Sub-Registrar as required by law. There were some suits filed by Ramkumar and Naneshah. The suit filed by Naneshah against some of the Tenants, was dismissed, but, one filed by Ramkumar against Naneshah for ejectment and arrears of rent (Suit No. 2/54) was decreed against Naneshah, but the decree was ultimately set aside by this Court in second appeal and that suit is still said to be pending. Ramkumar is said to have sold some portion of land to Kalusingh, non-peti-tioner who was also his 'Mukhtiar Aam' for the suit property. In 1964, a dispute between Naneshah and Ramkumar arose over the said land and Kalusingh on behalf of Ramkumar instituted proceeding under Section 145, Cr. P. C. in the court of City Magistrate. Jodhpur, against Naneshah and others on March 6, 1964, and the said proceedings terminated in favour of Ramkumar on November 10, 1965. Possession of the land was handed over to Ramkumar by the Receiver through Kalusingh, agent of Ramkumar on November 11, 1965, and on November 1'5, 1965, Kalusingh let out on rent the suit-property to the plaintiff on a monthly rent of Rs. 150/-. On the said land, there were also five shops. A revision was filed against the order of the City Magistrate in the court of Additional Sessions Judge No. 1, Jodhpur. An application was filed on behalf of the Board of Muslim Wakf, Rajasthan, Jaipur, for being impleaded as a party as it claimed that the subject of the dispute in proceedings under Section 145. Cr. P. C. was wakf property, the same being mosque and Takia and graveyard. The application was allowed and the Wakf Board was ordered to be made a party and a recommendation to this Court on a reference was made. The Wakf Board, who claims the property as wakf property, filed a suit on 18th May, 1966 in the court of Senior Civil Judge, Jodhpur, and claimed a declaratory relief that the property was wakf property and all the defendants in the suit he evicted In the aforesaid suit which is still pending Ramkumar, Kalusingh through whom the plaintiff claims, have also been impleaded along with others. In that suit a receiver has also been appointed. By that time, Ramkumar had died and it appears that Shankerlal and two other legal representatives of Ramkumar Garg filed an application before this Court that they are not interested to continue proceedings and in taking possession thereof, and therefore, the learned single Judge of this Court set aside the aforesaid order of the City Magistrate and ordered that the possession of the property be handed over back to the persons from whom it was taken by the S. H. O. Police Station Udaimandir. There was no clear material on record as to from whom possession was taken at the time of attachment, therefore, an enquiry was ordered by this Court and the City Magistrate, Jodhpur, enquired into the matter and under his detailed report dated July 15, 1968, held that on the day the subject of dispute was attached in proceedings under Section 145 Cr. P. C., Naneshah and his abovenamed tenants were in possession and property had been attached from their possession. The report dated July 15, 1968, was accepted by the Division Bench of this Court under order dt. April 20, 1971 and it ordered that the possession be delivered to Naneshah and abovenamed five tenants. The plaintiff filed two suits, thereafter, for the reliefs as already stated and in both the suits filed an application for temporary injunction, which was granted and the appeals too were dismissed.

4. I will first of all, take the objection of Mr. Calla that in the facts and circumstances of the case, this Court should not interfere under Section 115, C. P. C. in exercise of its powers of revision. According to Mr. Calla, the case does not fall under any of the Clauses (a), (b) and (c) of Section 115, C. P. C. The courts below had jurisdiction to grant the temporary injunction and no illegality in the exercise of jurisdiction has been committed by the courts and therefore, this Court cannot interfere in the order passed by the Lower Courts. In support of his submission, Mr. Calla has placed reliance on Pandurang v. Maruti (AIR 1966 SC 153): Hindustan Aeronauties v. Ajit Prasad (AIR 1973 SC 76) : Delhi Municipality v. Suresh Chandra (AIR 1976 SC 2621): and on Harakchand's case (ILR (1970) 20 Raj 88) (FB) Mr. Chopra in reply, has submitted that in giving a finding about prima facie case the courts below have ignored the order of this Court passed in proceedings under Section 145. Cr. P. C. and in the presence of the aforesaid order burden was on the plaintiff to show that notwithstanding that order he has a fairly good prima facie case He submits that decision of the trial court as well as lower appellate court is arbitrary, perverse and at any rate, is not based on sound legal principles and therefore this Court is competent to interfere in revision. In support of his submission, he has placed reliance on Musa v. Badri Prasad (ILR 1953 Rai 257). Vellakuttv v. Karihyayani (AIR 1968 Ker 179). and on Smt. Vimla Devi v. Jang Bahadur (1977 Rai LW 326) : (AIR 1977 Rai 196).

5. After having gone through the above referred two authorities, it can no doubt be said that under all the three Clauses (a), (b) and (c) of Section 115, Civil P. C., there must be jurisdictional error committed by the courts below and then only a case for interference in revision can be made out. But, at the same time, if in recording a finding on prima facie case, the courts below have not taken into consideration each and every material brought before it, namely, affidavits and documents, having material bearing on such a finding then as held by this Court in Smt. Vimla Devi v. Jang Bahadur (1977 Raj LW 326) : (AIR 1977 Rai 196), the courts below can be said to have committed jurisdictional error and can be said to have exercised jurisdiction either illegally or with material irregularity.

6. I will have an occasion to consider in detail as to whether the courts have considered or not considered all the material referred to earlier in recording a finding of prima facie case, at a later stage. For the present, suffice it to say that the entire approach of the courts below in a case of the present nature appears to be wrong. No doubt, the proceedings under Section 145, Criminal Procedure Code, are in nature of police orders and orders made thereunder are conterminous with the adjudication of rights of the parties in the suit but in case, if there is an order in favour of one party in proceedings under Section 145. Criminal Procedure Code, holding that that party was in possession on the date of attachment, then in a civil suit the burden is on the plaintiff to rebut it and for that a fairly good prima facie case will be required I can do no more than to refer to the case of Bhinka v. Charan Singh [AIR 1959 SC 960). Their Lordships observed :--

'The life of the said order is conterminous with the passing of a decree by a Civil Court and the moment the Civil Court makes an order of eviction, it displaces the order of the Criminal Court.'

Their Lordships further observed in para 9 : --

'The order of the Magistrate under Section 145 of the Code of Criminal Procedure may, at best, throws the burden of proof on the plaintiff; but in the present case the question of burden of proof is not material, for the findings of the three courts were arrived at on a consideration of the entire evidence, Though the learned counsel says that material evidence has been ignored by the Courts, he has not been able to point out what evidence has been excluded.''

Therefore, in may opinion, the courts below, in view of the order of the Division Bench of the Court dated April 20 1971, in proceedings 145, Cr. P. C under which it was held that on the date of the attachment namely, on March 26, 1964, Naneshah and his five tenants above-named, were in possession, should have kept in mind that burden to prove that the plaintiff has a fairly prima facie case was on the plaintiff. This does not appear to have been kept in mind by any of the courts below. That apart it also appears that courts below have not taken into consideration some impart-ant material which was placed before it and therefore, the finding about prima facie case can be said to be vitiated as held in Vimladevi's case (AIR 1977 Raj 196) (supra). It will be seen that the learned lower appellate court has not discussed the affidavits which were filed by the parties in the application under Order XXXIX, Rules 1 and 2, C. P. C. It has not taken into consideration a detailed report dated July 15, 1968 of the City Magistrate recording a finding that on the date of attachment of the subject of dispute in proceedings under Section 145, Cr. P. C, i. e., on March 26, 1964. Naneshah and his five tenants were in possession. It has also not taken into consideration the certified copy of the order dated June 6, 1953. in D. B. Civil First Appeal No. 32/58. Abdul-bakim and others of the Senior Civil Judge, Jodhpur, under which on the compromise entered in between Naneshah defendant of that case and, the plaintiffs representing the Muslim Community of Jodhpor a compromise was arrived at that the suit-property is wakf property and Naneshah had no right to transfer it. Though it has considered the fact that in Civil Suit No. 157/57, the suit of Ramkumar for eviction was decreed against Naneshah, it has not taken into consideration the fact that that judgment was ultimately set aside in second appeal by this Court. The lower appellate court has observed that no certified copy of the aforesaid order of the Division Bench has been filed. In Manoharsingh v. Naneshah, Civil Suit No. 26/75 (258/71), out of the miscellaneous proceedings of which one of the revisions has been filed a certified copy of the Judgment dated March 1, (sic) in S. B. Civil Regular Appeal No. 428/61 was on record and it goes to show that the appeal was allowed and the case was remanded back to the trial court. Though it considered the judgment dated October 26, 1960, of the Senior Civil Judge, Jodhpur, (Suit No. 66/59) wherein it was observed that notwithstanding the refusal of Naneshah to get the sale deed registered as there was an endorsement as required by law with regard to the refusal of said Naneshah to get the sale-deed registered, but it failed to consider the observation of the appellate court against the aforesaid judgment. The aforesaid judgment of Civil Judge, Jodhpur, was challenged in appeal which was decided by the learned District Judge on May 10, 1964 (Civil Appeal No. 8/1961). The learned District Judge observed 'it is, of course, evident that the sale deed had not been registered, but even in spite of that, the land in question had been obviously transferred in favour of Ramkumar by Naneshah by asking his tenants to execute rent-notes in the name of the purchaser and this sale-deed (Ex. A/1) can at least be used to show the nature of this possession under Section 49 of the Registration Act. It has further observed 'when the land had been transferred in favour of Ramkumar by a deed of sale, though not registered the defendant who claims to be a tenant of Ramkumar, can defend the suit for possession in view of Section 53A of the Transfer of Property Act and also his claim for recovery of arrears of rent.' Thus, having failed to consider the above matters which they must have considered as already stated earlier, the finding of prima facie case is vitiated and it can be said that the courts have exercised the jurisdiction either illegally or with material irregularity.

7. It is to be seen as to whether it was a case in which the court should have granted an injunction restraining Naneshah and his five tenants from taking possession of the suit land including the shops under the orders of the Division Bench of this Court dated April 20, 1971. The suit has not been filed by Ramkumar. who as already stated while giving a re'sume' of the facts, had died during the pendency of proceedings under Section 145. Criminal Procedure Code. It has also not been Bled by Kalusingh who professes to be 'Mukhtiyar Aam' of Ramkumar. The plaintiff is none else but the nephew of Kalusingh. Ramkumar does not want his rights to be decided vis-a-vis Naneshah and his tenants. On the other hand while a reference was pending in this Court in proceedings under Section 145, Criminal Procedure Code the legal re-preservatives of said Ramkumar who by then had died, gave an application that they do not want to prosecute the proceedings and do not want to get the possession of it. The proceedings were dropped. As already stated earlier, after the City Magistrate had made an enquiry and submitted his report dated July, 15, 1968, that on the date of attachment Naneshah and his five tenants were in possession, this Court on April 20, 1971, ordered that the possession be handed over to Naneshah and his five tenants an order under Section 145. Criminal Procedure Code, was passed on November 10, 1955, declaring the possession of Ramkumar. On November 11, i. e. next day of the order it is not Ram-kumar who takes the possession, but Kalusingh 'Mukhtiyaraam' and on November 15. i. e. after four days inducts the plaintiff his own nephew as a tenant. In the proceedings under Order XXXIX, Rules 1 and 2 even an affidavit of Kalusingh was not filed to show that on March 26, 1964, when the subject of dispute was attached in proceedings under Section 145. Criminal procedure Code, it was Ramkumar or his 'Mukhti-yar Aam, Kalusingh who was in possession of it. To my mind, even if Ramkumar would have filed a suit for declaration of his rights in the suit land, which he has not filed perhaps it would not have been possible to hold in the facts and circumstances of the case and material on record that there was a fairly good prima facie case and the burden which is thrown on a party, as a result of an order in favour of other party under Section 145, Criminal Procedure Code. had been prima facie not discharged by the plaintiff-petitioner.

8. A connected question may now be examined. It is as to what as the effect of an order under Section 145. Criminal Procedure Code an order under Section 145, Criminal Procedure Code, does not decide title or right to possession of the land but expressly reserves that question to be decided in due course of law. As already stated earlier the life of the said order is conterminous with the passing of a decree by the Civil Court and the moment the Civil Court makes an order of eviction, it displaces the order of Criminal Court (AIR 1959 SC 960) Mr. Calla learned counsel for the plaintiff, has placed reliance an Brojendra Kumar v. Jitendra Chandra (AIR 1960 Assam 111) (FB): Mula v. Baburam (AIR 1960 All 573) in support of the submission that notwithstanding an order under Section 145, Criminal procedure Code, in a suit an injunction can be granted by the court. In Brojendrakumar's case (supra), Full Bench of the Assam High Court considered the above matter as to whether under the provisions of Order XXXIX Rules 1 and 2, C. P. C. an injunction could be granted once there is an order under Section 145. Criminal Procedure Code. The facts of that case were that the defendant was not in actual physical possession on the date when proceedings under Section 145, Criminal Procedure Code were started, but at the conclusion of the proceedings was deemed to be in possession under Sub-section (6) of Section 145 Criminal procedure Code (sic)id.) Their Lordships observed, 'the mere order of the Magistrate under Section 145, Criminal procedure Code, that a party may be treated to be deemed to be in possession does not in any manner affect the jurisdiction of the Civil Court, if an appropriate case is made out for the exercise of his discretion under Order XXXIX, I am confining myself to the position that the defendant No. 1 or the tenant-defendant No. 4 was not in possession when the proceedings under Section 145. Criminal Procedure Code were instituted and that the plaintiff remained in possession in spite of the order under Section 145, Criminal P. C. and was in possession on the date, an application under Order XXXIX of he C. P. C. was made.' The Following observations are worthy of being quoted :

'I concede that where an order under Section 145 has been passed to the effect that the defendant to She suit was found in actual physical possession of the land, the question of granting an injunction restraining the defendant from interfering with the possession of the plaintiff would not arise. It is only in cases where an order is passed under Section 145(4), Proviso 2, that the question of prelecting the rights of the plaintiff until the decision of the suit arises, by issue of an injunction restraining the defendants from interfering with the plaintiff's possession.'

Their Lordships overruled the earlier decision of the their Court (AIR 1955 Assam 156). In Mula v. Baburam (AIR 1960 All 573) (supra), the facts were that notwithstanding the attachment of the subject of dispute in proceedings under Section 145, Criminal P. C. the plaintiffs were permitted to cultivate the land in dispute for the Kharif Season of 1951 in consideration of payment of Rs. 1,000/- to the court. The order under Sub-section (4) of Section 145, Criminal Procedure Code. holding that the defendant appellants were in possession was passed on Dec. 11, 1951.'

9. To my mind, none of the two cases relied on by Mr. Calla, learned advocate for the plaintiff is of any help to the plaintiff. In the aforesaid case of the Full Bench of Assam High Court, it has been clearly observed that a distinction has to be made in cases where the Magistrate holds under Section 145 that a party was in actual physical possession of the property on the date of the proceedings and those where the party is deemed to be in possession. In the former case, there is no prima facie case for issue of an injunction while in the later case a proper case was made out and injunction can be issued. I will make a reference to Kaliprasad Das v. Gadadhar (1977-44 Cut LT 113) : (AIR 1978 Orissa 8). In that case, though their Lordships were dealing with the amendment to Order XXXIX, Rule 1, C.P.C. made by that Court, it was held that in suitable cases a Civil Court would have jurisdiction to make proper arrangements for preserving the property In that case also, there was a clear finding of the Magistrate that the third defendant was in possession within 60 days before the date of the preliminary order and the plaintiff dispossessed him during that period and accordingly the Magstrate directed that the said defendant should be put in possession and the possession should not be disturbed until he was evicted in due course of law.

10. After having dealt with the authorities referred to above. I am of the opinion that in a case where a party was in actual physical possession on the date when the proceedings under Section 145 had started, and in proceedings under Section 145, Cr. P. C., it is ultimately held so, then though civil court will have jurisdiction to issue an injunction if proper case will be made out, but a fairly good prima facie case should be made out to discharge the burden which the plaintiff has upon him as a result of the order of the Magistrate in favour of the other party. If it were not so even party out of possession may create a dispute as envisaged under Section 145(1), Criminal P. c. dispossess the party in actual possession, and once having taken possession under the orders of the Magistrate under Section 145 will get an injunction even if the order of the Magistrate is reversed by the High Court.

11. In the instant case, the Magistrate attached the subject of dispute on March 26, 1964. He decided the proceedings on November 10, 1965; delivered the possession on November 11, 1965 to Kalusingh 'Mukatiyar Aam' of Ram-kumar and Kalusingh inducted the plaintiff his nephew as a tenant. The City Magistrate under the order of this Court made an enquiry and in his re-port. dated July 15, 1968, clearly held that on the date of attachment namely, March 26, 1964, Naneshah and his five tenants were in possession. This Court on April 20, 1971, ordered that Naneshah and his five tenants were in possession and the possession should be delivered to them. As already stated earlier, the suit is not by Ramkumar for declaration of title, Ramkumar has died and it is the plaintiff who wants declaration of rights as a tenant, the rights which were created after the order of the Court under Section 145, Cr. P. C. which order has been set aside by this Court. I am therefore, of the opinion that the courts have erred in holding that the plaintiff has a prima facie case. The result of an injunction will be that those tenants of Naneshah who were in actual physical possession on March, 26, 1964, the day, on which the suit property was attached will not be able to take possession of the shop. It is nowhere the case of the plaintiff that Naneshah and his tenants were not in possession on March 26, 1964, or that on that day they dispossessed Ramkumar or his 'Mukhtiyar Aam' Kalusingh. This, courts below in the exercise of their jurisdiction acted either illegally or with material irregularity in holding that the plaintiff had a prima a facie case and erred in issuing an injunction in his favour.

12. I will therefore, allow both the revision petitions: set aside the judgment dated March 18, 1976, of the Additional District Judge No. 2, Jodhpur, as well as the orders of the trial court, issuing an injunction. In both the suits, the applications of the plaintiff for an injunction stands dismissed. I will leave the parties to bear their own costs.


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