Murali Damodar Kanuri vs Dappu Laxmaiah and Others

The C.R.P. is directed against the order in C.M.A. No.28/1997 on the file of Additional District Judge, Sangareddy, dated 5-12-1997 setting aside the order in I.A.No.277/1997 in O.S.No. 122/1997 on the file of Principal District Munsif, Sangareddy, dated 3-10-1997 and consequently vacating the temporary injunction granted in favour of the revision petitioner herein. The revision petitioner is the plaintiff before the trial Court and the respondents herein are defendants.

The facts giving rise to this revision petition in brief are that the revision petitioner purchased the suit schedule land bearing S.No. 118 measuring 1 acre 14 guntas through Ex.A1 sale deed on 30-1-1980 from four vendors and S.No. 119 measuring 3 acres 18 guntas under Ex.A3 sale deed on the same day from 25 vendors and he has been in possession and enjoyment of the same eversince that day. Out of the aforesaid 3 acres 18 guntas, a piece of 25 guntas was acquired by the Government for the purpose of laying a road and excluding that portion of the land, an extent of 2 acres 33 guntas was sold under Ex.A3 sale deed. He has been granted patta pass books which are marked as Exs.A5 and A6 and subsequently there was enquiry under Inams Abolition Act and a final patta certificate was granted by the Inams Tribunal-cum-Revenue Divisional Officer on 20-11-1996. The patta certificate is marked as Ex.A7. It is the case of the revision petitioner that his vendors filed affidavits before the Inams Tribunal admitting the factum of sale and putting him in possession. When the respondents herein started interfering with his possession, he filed O.S.No.122 of 1997 seeking perpetual injunction. He also filed I. ANo. 277 of 1997 for temporary injunction under Order XXXIX Rule 1 of the Code of Civil Procedure. The learned Principal District Munsif at Sangareddy granted an order to maintain status quo on 16-8-1997 and after hearing both parties, he allowed the petition and granted temporary injunction on 3-10-1997. The respondents carried the matter in appeal to the District Court where the learned Additional District Judge by his order in C.M.A.No. 28/1997 dated 5-12-1997 discharged the temporary injunction. Hence, this revision petition.

Sri. V. Venkata Ramanaiah, learned senior Counsel strenuously contended that a strong prima facie case is a made out by the revision petitioner in as much as the registered sale deeds obtained from the original owners under Exs. A.1 and A.3 show that possession was delivered on the same day; that Inams Tribunal has granted final patta certificate on 20-11-1996 under Ex: A7 and a competent authority has issued patta pass books-Exs. A.5 and A.6 and that there is a presumption of correctness of the entries in the patta pass books u/s 6 of the Record of Rights Act. He also contended that his name is recorded as actual cultivator in the latest pahani. He, therefore, urged that the revision petition may be allowed and the order of the learned Additional District Judge may be set aside and the order of the learned Principal District Munsif may be restored.

On the other hand, Sri S. Venkat Reddy, learned senior Counsel contended that the appellant did not approach this Court with clean hands. He pointed out that 25 guntas of land was acquired by the Government for the purpose of laying road, but the appellant has included that portion also in the suit land and hence it is not a bona fide claim. He then contended that there is no error of jurisdiction and no interference is called for u/s 115 of the Code of Civil Procedure. He relied on the judgments in Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, ; Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, ; and Sher Singh (Dead) through Lrs. v. Joint Director of Consolidation and others . He lastly contended that there is a finding recorded by the trial Court as well as the appellate Court that the respondents are in possession till 1994-95 and there is nothing on record to show that they have been evicted by due process of law and hence they may be presumed to be in possession and the impugned order may not be interfered with.

In reply Sri Venkata Ramanaiah pointed out that the latest pahani for the year 1997-98 has been filed and it contains the name of the revision petitioner as the possessor and actual cultivator and hence there can be no doubt about the possession of the revision petitioner as on the date of the suit.

I carefully considered the contentions of both sides. I shall first deal with the scope of Section 115 of the CPC as three authorities of the Apex Court are cited and it is argued that there is no error of jurisdiction in this case and, therefore, no interference is called for.

In Manindra Land and Building Corporation Ltd., case (supra), it is held:-

" It is not open to the High Court in the exercise of its revisional jurisdiction u/s 115, to question the findings of fact recorded by a Subordinate Court. Section 115 applies to cases involving questions of jurisdiction, i.e., questions regarding the irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved".

In the Judgment Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, cited supra, a Constitution Bench reiterated the above dicta while considering the scope of Section 115 of CPC and defined the extent of revisional powers of the High Court in the following terms:

"The High Court cannot while exercising its jurisdiction u/s 115, correct errors of fact, however gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. It is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. Points of law may arise which are related to questions of jurisdiction. A plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party which raises them would oust the jurisdiction of the Court. An erroneous decision on these plcas, therefore, can be said to be concerned with questions of jurisdiction falling within the purview of Section 115 of the Code. But an erroneous decision on a question of law having no relation to questions of jurisdiction will not be corrected by the High Court u/s 115".

In a subsequent Judgment , cited supra, the Supreme Court followed the above view and held--

"Section 48 of the U.P. Consolidation of Holdings Act is in pari materia with Section 115 of the CPC which provides for revisional jurisdiction of the High Court. It is well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the Subordinate Courts. If a Subordinate Court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exercising its jurisdiction u/s 115 of the CPC to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the Court to try the dispute itself.

It is, thus, well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the Subordinate Courts and that it is not open to the High court to correct errors of fact or even errors of law unless the errors have relation to the jurisdiction of the subordinate Court. These principles have to be kept in view while deciding this case.

Section 115 C.P.C. Clause (c) reads as under:-

"The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears:

(a) .....

(b) .....

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-

(a) the order, if it had been made in favourf the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made".

The grievance of the revision petitioner is that the learned Additional District Judge acted with material irregularity in setting aside a reasoned order passed by the learned Principal District Munsif. Evidently, he is seeking to bring the case under Clause ''c''. I shall examine whether the above contention is based on the available material or not. If there is material to the satisfaction of this Court, it can be said that the case falls under Clause (c) and hence this Court can exercise jurisdiction and interfere.

It is an elementary principle that the plaintiff- petitioner has to make out (1) Prima facie case (2) balance of convenience and (3) irreparable injury in the event of withholding injunction. The learned Principal District Munsif considered all the above three essential ingredients and held that the revision petitioner has made out a prima facie case. The reason is that he has filed registered sale deeds executed by the original owners and they are marked as Exs. A1 and A3. Subsequently Inams Abolition Tribunal enquired into the matter and in those proceedings all the vendors have filed affidavits admitting that the above land has been sold to the revision petitioner and possession of land was also delivered to him. Accordingly, Ex.A7, final patta certificate has been granted. Thereafter, Exs. A5 and A6 patta pass books have been granted by the competent authority. Thus, the title of the revision petitioner in respect of the suit schedule land has been established according to the learned Principal District Munsif and the same appears to be well-founded.

It is true that the land acquired by the Government has also been made part of the said claim. The explanation of Sri Venkata Ramanaiah is that the above land was merely acquired and possession has not been taken by the Government and no road has been laid and that land has continued to be in occupation of the vendors and thereafter the revision petitioner. Be that as it may Sri Venkata Ramanaiah also stated that he is not claiming any rights insofar as that piece of land is concerned and that he would like to confine his suit only to the rest of the land in these two survey numbers. Such being the case, I do not find any difficulty in holding that a strong prima facie case has been made out by the revision petitioner herein. That apart, Exs. B1 to B6 pahanies filed by the respondents do not contain the names of the respondents as landholders. On the contrary the pahani for 1997-98 which is the latest pahani, which indicates the possession as on the date of filing of the suit shows the name of the revision petitioner as the actual cultivator. In these circumstances, the title as well as possession of the revision petitioner are prima facie established and that is the first ground on which the learned Principal District Munsif granted injunction.

The learned Additional District Judge noticed that the revision petitioner filed IA. No.347/1997 for amendment of the plaint so as to delete the word ''assignees'' and to substitute the same by ''inamdars'' and that the said I.A is still pending and held that since all the documents filed by the revision petitioner show that the suit land is an inam land and whereas the revision petitioner is not sure whether it is an assigned land or inam land and till the aforesaid amendment petition is allowed, Ex.A7 cannot help the revision petitioner. The fact remains that the suit land is entered as inam land in the revenue records. Ex. A7 Occupancy Certificate issued under the provisions of Inams Abolition Act in favour of the revision petitioner is a valuable piece of evidence and hence it could not have been brushed aside by the learned Additional District Judge on the ground of pendency of I. A.No.347/1997. It is possible that the word ''assignees'' crept into the plaint by inadvertance as asserted by the revision petitioner, but it does not mean that the nature of the land will be changed even if the respondents claimed themselves to be assignees. Then the learned Additional District Judge noticed that one Panchamulu is the pattedar as per Ex. A8 Khasra Pahani for 1954-55 and held that Exs.A1 and A3 sale deeds are not executed by Panchamulu. Be it noted that pattedar''s column in Khasra Pahani does not have any relation to the landholder, who is in occupation of the land at the relevant time. It is the landholder as per the Khasra Pahani, but not the pattedar who is entitled for the land. Likewise, the names of persons figuring as landholders in various pahanies are mentioned and compared with the names of vendors under Exs.A1 to A3 and it is further held that the entries in the pahanies are not tallying with the entries in Khasra Pahani. It must be borne-in-mind that an indepth scrutiny of the documents filed by either side is not required in an interlocutory application. It will be sufficient for the purpose of prima facie case to see whether title and possession are made out by the plaintiff-petitioner and in my view, the finding of the learned Principal District Munsif on this aspect is sustainable.

On the possession aspect, a finding is recorded by the learned Additional District Judge that the respondents herein are in physical possession, but the latest pahani of 1997-98 shows the name of the revision petitioner as actual cultivator and hence the above finding does not appear to be in conformity with the record. In this context it may not be out of place to mention that the appellate Courts should be slow in recording such findings or make such observations which are likely to influence the trial Court in disposing of main suit.

It is worthwhile to point out that the revision petitioner apprehends that he would be dispossessed if there is no protection from the Court by way of temporary injunction. When such is the apprehension, balance of convenience also can be said to be in favour of granting the injunction. It is noteworthy that none of the respondents have filed any document showing any connection whatsoever with the suit schedule land. That apart it can be said that irreparable injury would accrue if no injunction is granted as the respondents are likely to dispossess the revision petitioner. For these reasons, the order of the principal District Munsif is perfectly in order and hence the learned Additional District Judge should not have interfered with the above well reasoned order.

For the above reasons, the order in C.M.A.No. 28/1997 on the file of the Additional District Judge, Sangareddy, dated 5-2-1997 is not sustainable. Thus, the C.M.A. is allowed and the impugned order is set aside and the order of Principal District Munsif in I.A.No.277/1997 in O.S.No.122/1997 dated 3-10-1997 is restored. There will be no order as to costs.