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Devi Saran and anr. Vs. Shri Ram Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 7 of 1982
Judge
Reported inAIR1982HP124
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 39, Rules 1 and 2
AppellantDevi Saran and anr.
RespondentShri Ram Chand and ors.
Appellant Advocate Kedar Ishwar, Adv.
Respondent Advocate K.D. Sud, Adv.
DispositionRevision dismissed
Cases ReferredHyderabad v. Ajit Prasad Tarway
Excerpt:
property - interim injunction - petitioner filed a suit against respondent firm restraining him with disturbing with possession of suit land - ad interim injunction granted - ad interim injunction vacated by additional district judge - appeal - petitioner concluded that court came to a wrong conclusion regarding factum of possession of defendant and finding was perverse - for purpose of granting temporary injunction court had to find out as to who is person in immediate possession of disputed land - no ground made out for interference by court. - .....not have attested the entry on that date. all the same, the lower appellate court on the basis of evidence on record came to the conclusion that the defendants were in possession of the land. for the purpose of the grant or refusal of a temporary injunction, a court has to find out as to who is the person in the immediate possession of the disputed land. the trial court has also held the defendants to be in possession at such time. as such, this is a concurrent finding of courts below. i have perused the judgment of the lower appellate court. the court below has discussed and considered the evidence on record. the findings cannot be said to be perverse or without jurisdiction though a different view may be possible. bearing in mind the principles laid down by their lordships of the.....
Judgment:
ORDER

H.S. Thakur, J.

1. The petitioners (hereinafter referred to as the plaintiffs) filed a suit against the respondents (hereinafter referred to as the defendants) in the Court of Additional Sub Judge, Mandi, for injunction restraining the defendants from interfering with the possession of the land in suit An application for a temporary injunction was also filed and the Sub Judge granted ad interim temporary injunction order to the plaintiffs. The ad interim injunction, however, was vacated. The plaintiffs preferred an appeal which was dismissed by the Additional District Judge, Mandi.

2. Aggrieved by the order of the Additional District Judge, who affirmed the order of the trial Court, the plaintiffs have preferred this revision petition.

3. I have heard the learned counsel for the parties and have also perused the relevant record. Both the Courts below have tentatively come to the conclusion that she defendants are in possession of the land in suit. It is, however, not specifically held as to in what capacity they are in possession.

4. It is contended by the learned counsel for the petitioners that the Courts below have come to a wrong conclusion regarding the factum of possession of the defendants and, according to him, the finding is perverse. My attention has been drawn to a decision in Sri Bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi (AIR 1973 SC 1299). Their Lordships of the Supreme Court in this judgment have observed that the long course of entries which were consistently in favour of a party cannot be ignored in preference to the entries for a solitary year. It has been further oh-served that no useful purpose is served by discussing oral evidence led by the parties since that evidence is of an uncertain character and inadequate to displace the presumption arising out of the several entries spread over a large number of years. The learned counsel has also referred to a decision in Thunga Bai v. Visbalakshi Heggadthi (AIR 1975 Kant 111). In this judgment, the view has been taken that the High Court is always reluctant to interfere with the discretionary orders made by the Subordinate Court. But where the orders of the Courts below are perverse and unjust, it is the duty of the High Court in the exercise of its powers under Section 115 of C. P. C. to interfere. A decision can be said to be perverse when the material pleadings are wilfully disregarded or when there is some conscious violation of the rule of law or of procedure on the part of the Subordinate Court.

5. The learned counsel for the defendants on the contrary has referred to a decision in Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway (AIR 1973 SC 76). In this judgment, their Lordships of the Supreme Court have discussed the scope of the powers of High Court under Sec. 115 of the Civil P. C. The relevant observations may be reproduced (Para 5) :

'In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law; or may not be in accordance with law but one thing is dear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil P. C,'

6. It is not disputed that presumption of truth is attached to the entries in the revenue record. Nevertheless, the presumption is not conclusive but rebuttable. The defendants have based their claim for possession as tenants. No entry to this effect is incorporated in the revenue record. The lower appellate Court in its judgment has pointed out that at the time of Girdawari (crop inspection), the halqa Patwari found that the standing crop in the land was that of the defendants. As such, he made a note to this effect in the relevant record. This fact was further verified by the Field Kanungo and ultimately attested by the Assistant Collector. The plaintiffs have led evidence to show that the Assistant Collector on that day was somewhere else and could not have attested the entry on that date. All the same, the lower appellate Court on the basis of evidence on record came to the conclusion that the defendants were in possession of the land. For the purpose of the grant or refusal of a temporary injunction, a Court has to find out as to who is the person in the immediate possession of the disputed land. The trial Court has also held the defendants to be in possession at such time. As such, this is a concurrent finding of Courts below. I have perused the judgment of the lower appellate Court. The Court below has discussed and considered the evidence on record. The findings cannot be said to be perverse or without jurisdiction though a different view may be possible. Bearing in mind the principles laid down by their Lordships of the Supreme Court in the Managing Director (MIG) Aeronautics case (AIR 1973 SC 76) (supra), no ground is made out for interference by this Court in the exercise of its revisional powers. It may, however, be pointed out that the observations pertaining to the factum of possession made in these proceedings are to be treated without prejudice to the merits of the suit and would not in any manner influence the decision in the main suit.

7. For the foregoing reasons, the revision petition is dismissed, but with no order as to costs. It is expected that the trial Court will expedite the disposal of the suit.


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