Dharam Singh vs The Municipal Council and Others

Pratap Krishna Lohra, J.—Appalled by the impugned order dated 5th of February 2015, the appellant-plaintiff has laid this appeal under Order 43 Rule 1(4), Code of Civil Procedure 1908 (for short, ''CPC'').

The learned Addl. District Judge, Barmer (learned trial Court), by the order under challenge, has rejected the application of the appellant under Order 39 Rule 1 and 2 read with Section 151 CPC for temporary injunction in a suit for declaration about ownership of the suit property, possession of the property and the relief of mandatory injunction for removal of unauthorized construction over it. Precisely, for claiming ownership over the suit property, the appellant-plaintiff has invoked doctrine of adverse possession. In the plaint, it is also inter-alia averred by the appellant that earlier the land was jointly owned by his father Narain Singh and one Shiva Ram and Shiva Ram sold his share to his father by a registered sale deed on 17.12.1968. It is also stated in the plaint that after death of Narain Singh in the year 1989, the appellant became the sole owner of the property being the only legal heir of his father and the property remained in his possession as its owner. Appellant has also referred to an earlier litigation launched at his behest against first respondent Municipal Council, purportedly for injunction with respect to the same property. The said suit was partly decreed by the Civil Judge (Jr.Div.), Barmer directing the Municipal Council not to dispossess the appellant from the land in question without following due process of law.

Along with the suit, an application for temporary injunction is also filed by the appellant-plaintiff claiming the relief that he may not be dispossessed from the land in question and status quo regarding the suit property be maintained during the pendency of the suit.

The application for temporary injunction is contested by the first respondent Municipal Council, Barmer and a reply to the same is filed. In its reply, the first respondent has categorically averred that disputed land is recorded about two decades back in the name of Municipal Council, Barmer as per revenue records. It is also specifically pleaded that in the revenue record the land is shown as part of Khasra No. 168 and set apart for burial place. On the strength of this plea, the first respondent has submitted that suit is barred by limitation. As regards the averment pertaining to possession of the land, respondent has specifically averred in the reply that appellant has made encroachment on the land, which is recorded in the revenue record as Gair Mumkin Samshan, and lease deed has been issued in the name of second and third respondent as well as the entire community to which they belong. That apart, certain other objections are also incorporated in the reply and the alleged construction so made on the land in question by father of the appellant is also seriously disputed by the first respondent. With these averments, a request was made for rejection of prayer for interim injunction.

The learned Court below, after hearing the rival submissions, recorded its finding with clarity and precision that appellant-plaintiff has failed to establish prima facie case in his favour. While examining the alleged title of the appellant, the learned Court below has found that prima facie title of the appellant is under serious cloud inasmuch as the alleged sale transaction between Moola Ram s/o Kachhba with appellant''s father and Shiva Ram is of no avail and consequence. According to learned Court below, the predecessor in title of Shiva Ram and appellant''s father himself had no title about the said property and as such he was not competent to transfer the same to others. While referring to the earlier suit laid at the behest of the appellant, the learned Court below has taken note of the finding of fact recorded by learned Civil Judge (Jr.Div.) Barmer, wherein the Court has concluded that appellant has failed to prove his title and consequently declined the relief of permanent injunction. A prima facie finding is also recorded that aforesaid judgment has attained finality and therefore appellant cannot maintain second suit for perpetual injunction. While adverting to the other ingredients necessary for grant of temporary injunction, learned Court below has recorded a categorical finding that these two ingredients are conspicuously missing and as such temporary injunction cannot be granted in favour of the appellant.

Learned counsel for the appellant Mr. Bhavit Sharma has strenuously urged that the learned Court below while passing the impugned order has not examined the facts in entirety and therefore impugned order cannot be sustained. Mr. Sharma would contend that the learned Court below has not exercised its discretion judiciously in refusing the temporary injunction and has acted arbitrarily or perversely in ignorance of sound legal principles which deserves judicial scrutiny in this appeal. Lastly Mr. Sharma submits that looking to the nature of the suit, which is a property dispute, the learned Court below ought to have exercised its discretion in favour of appellant for grant of temporary injunction. In support of his contentions, learned counsel has placed reliance on following judgments:

� Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others, AIR 1983 SC 742 : (1983) 1 SCALE 775 : (1983) 4 SCC 31

� Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105 : (1999) 4 ARBLR 399 : (1999) 4 CompLJ 1 : (1999) 6 JT 89 : (1999) 5 SCALE 95 : (1999) 7 SCC 1 : (1999) 1 SCR 560 Supp : (1999) AIRSCW 3050 : (1999) 7 Supreme 240 .

� Mukesh Kumar Swami Vs. Prahlad Sharma and Ors. (2011 WLC (Raj.) (UC) 528]

� Mohammed Sadiq and Others Vs. Abida and Others, (2011) 1 RLW 399

I have heard learned counsel for the appellant, perused the impugned order and have given my anxious consideration to the legal precedents on which reliance is placed.

The first and the foremost question, which requires judicial scrutiny in this appeal is the edifice of the suit laid by the appellant for omnibus reliefs. In his suit, the appellant has claimed many reliefs including the relief of declaring him owner of the land, delivery of possession and mandatory injunction for removal of unauthorized construction over it. Learned Court below, on thrashing out the matter, prima facie, found that the disputed land is recorded as burial place in the revenue records and the requisite entry was made two decades back in the name of first respondent Municipal Council, Barmer. In common parlance, a land which is set apart for burial place is to be used by public at large for performing last rites vis-a-vis dead person and such a land cannot be owned by an individual. It is also noteworthy that the earlier suit, which was laid by the appellant has not proved to be productive inasmuch as relief for permanent injunction was not granted to the appellant and a limited indulgence was granted not to dispossess him without following due process of law. While adjudicating the lis involved in that suit, the competent Civil Court has also recorded clear and unequivocal finding that appellant has miserably failed to prove his title over the land in question. As a matter of fact, it appears that present suit is designed by the appellant with certain additional reliefs after his earlier effort has proved abortive. Admittedly, the land in question is part of Khasra No. 168, which is recorded as burial place in the revenue record, I am afraid, the said land cannot be treated to be owned by any individual including the appellant. Therefore, on critical analysis of the finding of learned Court below on all the three ingredients, namely, prima facie case, balance of convenience and irreparable loss, I am unable to concur with the submissions of the learned counsel for the appellant that impugned order is vulnerable. The legal precedents, on which learned counsel for the appellant has placed reliance, are examined by me in the backdrop of peculiar facts and circumstances of the instant case, and, in my opinion, none of these judgments can render any assistance to the appellant. An incumbent like appellant, who has made encroachment on a land which is part of burial place, cannot be allowed to claim discretionary equitable relief as the said relief is to be granted on the principles of equity, justice and good conscience. Moreover, taking into account the checkered history and the earlier litigation launched by the appellant, it is difficult to hold that the learned Court below while passing the impugned order has acted arbitrarily, perversely, capriciously or in disregard of sound legal principles.

It is trite that powers of appellate Court in the matter of refusal of temporary injunction are very much limited and are to be exercised with great care and circumspection. Learned Single Judge of this Court in Smt. Vimla Devi Vs. Jang Bahadur, AIR 1977 Raj 196 : (1977) WLN 143 , while examining the powers of the appellate Court against the order refusing temporary injunction, has held:

I have given my earnest consideration to the contentions raised on behalf of the defendant-petitioner. The order refusing temporary injunction is of a discretionary character. Ordinarily Court of appeal will not interfere with the exercise of discretion passed by the trial Court and substitute for it its own discretion. The interference with the discretionary order, however, may be justified if the lower Court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all the relevant records.

In the light of the above observations, I have now to see whether it was open to the learned District Judge to interfere with the order of the learned trial Court. It is well settled that the grant of temporary injunction is a discretionary order and the decision of the first Court could not be easily interfered with by the appellate Court vide Musa v. Badri Prasad, ILR (1953) 3 Raj 257. The mere possibility of the appellate Court coming to a different conclusion on the same facts and evidence will also not justify interference vide Wazir Sundar Singh v. Mst. Farida Khanam, AIR 1920 PC 132. Another well established principle while disposing of the application under O. 39, Rr. 1 and 2, C.P.C. is that when the Court while dealing with the case for grant of temporary injunction decides the question of prima facie case, it should apply its judicial mind to the materials which are placed on the record and if it does not do so then it commits illegality in the exercise of jurisdiction and in that case the High Court is competent to interfere in revision in such a case vide Musa v. Badri Prasad (supra). The view taken in Musa v. Badri Prasad (supra) has been followed by Kan Singh J. in Girdhari Lal v. Mahadevi Sharma, AIR 1958 Raj 237. It has been held in this case that the appellate Court should be slow in upsetting a decision of a trial Court in a matter relating to grant of temporary injunction unless the decision of the trial Court is arbitrary, perverse or is not based on sound legal principles. It has been further observed in that case that when the appellate Court does not apply its judicial mind on all the materials brought on the record then in that case the approach of an Appellate Court would be wrong and contrary to the well established principles laid down by the High Court, more so when the appellate Court does not deal with the reasoning that has prevailed with the trial Court and further when it does not apply its judicial mind on the materials placed on the record.

In Wander Ltd. and Another Vs. Antox India P. Ltd., (1990) 2 ARBLR 399 : (1990) 1 SCC 727 Supp : (1990) SCC 727 Supp , Hon''ble Apex Court, while examining the powers of the appellate Court to interfere in case of interlocutory injunction, which is discretionary in character, has held:

The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court''s exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721)

...These principles are well established, but as has been observed by Viscount Simon in Charles Osention and Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.

The appellate judgment does not seem to defer to this principle.

In above view of the matter, I feel dissuaded to interfere with the impugned order passed by the learned Court below.

Resultantly, the appeal fails and the same is hereby dismissed summarily.