Ishawar Singh vs Dera Baba Braharpuri Baishtma

N.K. Kappor, J.—This is defendant''s Regular second Appeal against the judgment and decree of the Additional District Judge where by the Judgment and decree of the trial Court was affirmed in appeal.

Briefly, put, the plaintiff filed a suit for permanent injunction on the ground that he is owner in possession of the suit land and that the defendants have no concern whatsoever. Apprehending forcible occupation of the suit land, the plaintiff filed a suit seeking the restrain order against the defendants.

The defendants in their written statement broadly controverted the pleas raised by the plaintiff. It was further asserted by the defendants that they are in possession of the suit land. It was further explained that in a dispute between the parties the land has been attached u/s 145 of the Code of Criminal procedure and so at the moment the possession is with the receiver.

On the Pleadings of the parties, following issues were framed:-

1) Whether the plaintiff is in possession of the suit land, if so, in what capacity and its effect? OPP.

2) Relief.

The trial court after referring to the respective evidence led by the parties decided issue No. 1 in favour of the plaintiff thus holding that the plaintiff-Dera Baba Brahmpuri is in possession of the suit land as owner through its Mohatmim (Manager). Resultantly, the suit of the plaint was decreed as prayed for.

In appeal the matter was once again examined on facts as well as on law. Much emphasis was laid by the Learned Counsel for the appellant that the trial Court erred in law in not properly perusing the revenue entries as reflected in the copies of the Khasra girdawari and jamabandi placed on record. Specific mention was made as to the entry in the copy of jamabandi for the year 1974-75

Exhibit P-1 wherein Hira''s name is recorded in the column of cultivation. On the basis of this entry it was contended that since the defendants are jointly in cultivation with Dalip s/o Hira, the conclusion of the trial Court is thus unsustainable. In any case, in view of the entry in copy of jamabandi regarding Hira to be in possession as per Exhibit P-1, there was no basis for the trial Court to return a finding regarding possession in favour of the plaintiff.

The lower appellate Court examined this contention quite thoroughly. By making reference to the averment in the plaint that Hira died some 7/8 Years ago which fact was not denied in the written statement and also for the reason that Dalip s/o Hira, who was alleged to be a partner in cultivation with defendants, did not put in appearance as a witness, the Court same to the conclusion that Hira died some time in the year 1968- 69 and so the entry showing his name in the jamabandi of the year 1974-75 Exhibit P-1 was per se wrong. This discarding the wrong entry repeated in the jamabandi for the year 1974-75 in favour of Heera and further holding that there was no person who succeed to the tenancy holding of Hira, the lower appellate Court affirmed the finding to the trial Court with regard to possession in favour of the plaintiff.

Similarly, the appellate Court did not find any merit in the contention of the appellant that in view of the pendency of proceedings u/s 145 of the Code of Criminal procedure that present suit for injunction was not maintainable. The appeal was consequently dismissed.

At the motion hearing, it was contended by the counsel for the appellants that no decree for injunction can be granted when the property is in the possession of the receiver in proceedings u/s 145 of the Code of Criminal Procedure. The appeal was precisely admitted on this substantial question of law.

The Learned Counsel for the appellant has almost reiterated the same as was urged by him at the time of admission of the appeal. Before examining this question, it would be appropriate to be clear about the factual aspect of the case i. e. whether on the day the present suit was instituted, the property in dispute was already in possess on of the receiver or the property came in possession of the receiver at any subsequent time and if later, its effect upon the pendency of the suit.

Admittedly, the present suit was instituted on 24,5.1976. A persual of the record of the trial Court further reveals that status quo regarding possession as ordered by trial Court on the same day. The interim order was confirmed subsequently by the learned Subordinate Judge and affirmed in appeal by the appellate Court. The precise time the Court passed the order u/s 145 of the Code of Criminal procedure and appointed one Vijay Singh B. D. O. as official receiver is not discernible as per evidence on record. The solitary statement of Sh. Vijay Singh, B. D. 0. is rather vague. His statement was recorded on 23.7.1977. All that he has stated is that he has taken possession about a year ago. This witness as per his deposition in the Court could not exactly give the date of possession. Assuming what he has stated would at best suggest that the took possession some time in the month of July, 1976 i, e. after the institution of the suit and the interim order granted by the Court where by the parties were directed to maintain status quo. Thus there is no escape from the conclusion that the proceedings u/s 145 of the Code of Criminal procedure were initiated any time after may 24,1976 the date when the present suit was instituted. Examined in the light of this factual aspect the proceedings initiated subsequently no way bar a civil Court from adjudicating upon a matter within its competence, and so the suit was maintainable. In fact, the subsequent act of the B. D. 0., who was appointed as an official receiver by the Sub Divisional Magistrate, is in violation of the order of the civil Court. Even if it is assumed that the B. D. O. acted under the valid order passed by the Sub Divisional Magistrate, any such step taken by him cannot be held to have caused any cloud upon the merits of controversy which has been examined by the Court below. Examined thus, since the suit was instituted prior to the initiation of the proceedings u/s 145 of the Code of Criminal procedure, the subsequent'' possession taken by the receiver cannot be construed as a bar for grant of decree for injunction. However, in case it is proved on record that the proceedings u/s 145 of the Code of Criminal Procedure were initiated before the filing of the suit and the receiver in pursuance of the order of the Magistrate has taken possession of the property then no decree for injunction can be granted. The judgment in case reported as Gandappa Ramappa Damannaver and other v. Kallappa Sonkappa Katti and others. AIR 1973 Mys 190 cited by the Learned Counsel for the appellants does not advance the case of the appellants in any manner as in that case it was found as a fact that the plaintiffs were not in possession of the suit land on the dates the suits were filed. Not only this, it was found as a fact that the receiver continued to be in possesion of the suit land. On these premises it was held that relief of injunction cannot be granted when the property is in possession of the receiver appointed in proceedings u/s 145 of the Code of Criminal Procedure. The other judgment in case reported as Kundan Mal and Others Vs. Thikana Siryari and Others, cited by the Learned Counsel for the appellants has no applicability on the facts of the present case as on fact it was held that the plaintiff was not in possession of the property in dispute and so he could not sue for Injunction. In the present case, on careful perusal of the evidence both the courts have come to the conclusion that the plaintiff is in possession of the suit land. No other point arise for consideration. Accordingly, I find no merit in the appeal and dismiss the same. No costs.