Skip to content


The Deity Mandir Nandi Keshwar Mahadev Etc. Vs. Gram Sabha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 25 of 1971
Judge
Reported inAIR1973HP2
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rules 1 and 2
AppellantThe Deity Mandir Nandi Keshwar Mahadev Etc.
RespondentGram Sabha
Appellant Advocate R.K. Gupta and Surian Singh, Advs.
Respondent Advocate P.N. Nag, Adv.
Excerpt:
- .....to demarcate the exact area in order to find out the respective possession of the parties. the learned judge thereafter proceeded to observe that injunction of the nature restraining the defendants from taking possession over the property for constructing a house could not be granted within the meaning of order 39, rules 1 and 2 of the civil p. c. with these observations, he allowed the appeal and set aside the order of the learned senior sub-judge. 4. it is evident, the learned appellate judge was manifestly wrong when he gave the finding that the injunction prayed for could not be granted, as it fell outside the scope of order 39, rules 1 and 2. a perusal of rule 1 would indicate that a damage caused to property in suit can be restrained by a proper injunction. if samadhis are.....
Judgment:
ORDER

D.B. Lal, J.

1. This is an application in revision by the plaintiffs the Deity Temple Nandi Keshwar Mahadev and others, and they have called in question the order passed by the Additional District Judge, Kangra. whereby the injunction prayed for by them has been refused and appeal preferred by the defendants against the order of the Senior Sub-Judge Kangra, granting such injunction. has been allowed.

2. The facts of the case are. that the plaintiff Deity along with others filed the suit relating inter alia, to Khasra No. 123 Min. and the allegations were that the defendants Gram Sabha as well as Deity Chamunda Devi and others, were Interfering in the possession of the plaintiffs over the disputed land. The defendants have started digging up the land and are throwing mud while overturning 'Samadhis' of Sadhu etc. who had died in plaintiffs' temple and have been buried therein. The plaintiffs claimed possession over the disputed land since times immemorial which, according to them, the land is the burial ground of Sadhus etc. who come, stay and die in the temple of the plaintiffs. According to them, the defendants were raising certain constructions and as such desecrating the sanctity of 'samadhis'. Accordingly the plaintiffs prayed for declaration as to their title for the land and also for perpetual injunction calling upon the defendants not to proceed with their constructions so as to outrage the spiritual sanctity of the disputed land. The learned Senior Sub-Judge before whom the suit was instituted went for spot inspection on 2-8-1970 and finding some samadhis already desecrated, granted the interim injunction prayed for by the plaintiffs. The intention of the learned Senior Sub-Judge was to maintain the status quo. The defendants came in appeal before the learned Additional District Judge who reversed the order of the learned Senior Sub-Judge and set aside the injunction already granted in favour of the plaintiffs. The plaintiffs have felt aggrieved of the decision and have come up in revision.

3. A perusal of the order of the learned Addl. District Judge indicates that a request was made to him for spot Inspection, but this request was not acceded to, because he considered that nothing substantial would come out after spot inspection. Besides this, the learned Addl. District Judge held, that the inspection note already written by the trial Judge almost clinched the issue and that no samadhis were found in existence over the land in dispute. He further observed that no actual measurements were made at the spot and so it was difficult to demarcate the exact area in order to find out the respective possession of the parties. The learned Judge thereafter proceeded to observe that injunction of the nature restraining the defendants from taking possession over the property for constructing a house could not be granted within the meaning of Order 39, Rules 1 and 2 of the Civil P. C. With these observations, he allowed the appeal and set aside the order of the learned Senior Sub-Judge.

4. It is evident, the learned appellate Judge was manifestly wrong when he gave the finding that the injunction prayed for could not be granted, as it fell outside the scope of Order 39, Rules 1 and 2. A perusal of Rule 1 would indicate that a damage caused to property in suit can be restrained by a proper injunction. If samadhis are desecrated, damage is decidedly caused to the property in dispute. Therefore, the temporary injunction could be granted under Rule 1. Similarly under Rule 2 besides the injuries already specified in the rule, 'other injury of any kind' could also be prevented by granting a temporary injunction. This was decidedly an injury of a special kind inasmuch as the samadhis were being desecrated and the very nature of the disputed land was being altered. The Court should give widest interpretation to the word 'injuries' under Order 39, Rule 2 for doing justice even if the injury which the plaintiffs may suffer is not injury in the ordinary sense within the meaning of Rule 2. Therefore, the case is very well covered under Rules 1 and 2 of Order 39, and the learned Addl. District Judge failed to exercise a jurisdiction vested in him and an interference can be made by the High Court under Section 115 of the Civil P. C.

5. The learned appellate Judge has also given a wrong interpretation of the inspection note dated 2-8-1970 written by the learned Senior Sub-Judge. In this inspection note, there is a clear recital that the area lying adjacent to these foundations (of the constructions made by the defendants) is covered by samadhis and also there are some ornamental plants including flower beds etc. in it. It is also clear from the inspection note and so is observed by the learned appellate Judge himself, that the patwari of the area was not helpful and proper demarcation of the land was not made at the spot. Therefore, the area lying adjacent to the foundations could as well be the area under dispute. This finding could not therefore be given by the learned appellate Judge that no samadhis existed over the disputed area.

6. As to the revenue entries, regarding 10 marlas, the learned counsel for the petitioners frankly admitted that a prima facie case exists in favour of the defendants because the jamabandi of 1966-67 denotes the possession of Chamunda Devi (Defendant) over this area. The rest of the area of 1 kanal and 10 marlas of Khasra No. 123 Min. is 'charand'. This area was noted as 'banjar quadim' in 1890-91 which is evident from the Khasra of that year. Therefore, in respect of 10 marla-area the prima facie case may not be stated to have existed in favour of the petitioners and the interim injunction could not be granted with respect to this area. Regarding the remaining area of 1 kanal and 10 marlas, there was no difficulty in granting the temporary injunction prayed for.

7. It is well established that the plaintiffs were required to establish a prima facie title for the disputed land. For this they have already shown that the entry is of 'baniar quadim' or 'charand'. The land is adjoining to their temple and according to their averments made in the plaint, the possession is claimed from time immemorial. Samadhis already exist over a portion of this area which is clear from the inspection note of the learned Senior Sub-Judge. This being the position, a prima facie title no doubt exists in favour of the plaintiffs for 1 kanal. 10 marla-area.

8. In order to make out a prima facie case, necessary for granting an interlocutory injunction, the plaintiffs need not establish their title. It is enough if they can show that they have a fair question to raise as to the existence of the right which they allege and can satisfy the Court that the property in dispute should be preserved in its present actual condition until such question can be disposed of.

9. If samadhis are desecrated, irreparable injury would ensue because spiritual feelings would be destroyed. No one can deny that even the dead lying in grave command respect and defilement is not permissible. It is contended in the written statement that certain constructions already exist over 1 kanal. 10 marla-area, namely Phulwari Ashram Ghat, Sarai, Yagshala etc. These constructions are not to be disturbed by the plaintiffs. The injunction would only relate to future constructions and future digging up of portions for new constructions. The balance of convenience is definitely in favour of the grant of the temporary injunction.

10. In the circumstances, the learned Addl. District Judge can be stated to have felled to exercise a jurisdie-tion vested in him. There is decidedly illegality in his order. I would, therefore, allow the petition and set aside the order of the learned Addl. District Judge,

11. The injunction prayed for is, therefore, granted to the plaintiffs but only in respect of 1 kanal. 10 marlas area of Khasra No. 123 Min., with this modification that the constructions already in existence would not be disturbed and the status quo would be maintained.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //