Murti Shri Raghunath Ji vs Babu Ram & Anr.

Briefly stated the facts of the case are that the petitioner approached the A. D. M. Kathua, invoked the clemency of section 145 of Cr.P.C. for

protecting his claimed possession of 49 kanals seven marlas of land comprising in Khasra No. 301 situated in village Falhot. The learned ADM in

the first instance proceeded to attach the land in terms of subsection (4) of section 145 of Cr. P.C. Finally vide order dated 96199J returned a

finding declaring nonapplicants to be in possession of the land in question on the date when the preliminary order was drawn. The attachment order

was withdrawn and the respondents were allowed to retain possession until they would be legally evicted. This order does not seem to have been

entered into the record and as a result of this omission on the part of the revenue authorities, the petitioner's name continued to exist in the tenancy

column of the revenue entry, the petitioner filed a suit for permanent injunction before Sub Judge Kathua and by way of adinterim relief prayed for

temporary injunction in his favour, restraining the respondentsdefendants from interfering into his possession. The learned Sub Judge passed an

order on 3031991 whereby he issued temporary injunction against respondentsdefendants from interfering with the possession of the suit land

pending disposal of the suit between the parties. The respondentdefendants aggrieved of this order field an appeal before District Judge Kathua

who vide his order 1681991 setaside the order and allowed the appeal. It is against this appellate order that the present revision has been

preferred.

The recognised principles for grant or refusal of an injunction are oftbeaten. The existence of a prima facie case must form the basis for such

grant or refusal.

The question that arises for the consideration of the court in this case is as to what is purpose of finding returned by the Magistrate in terms of

sub section (6) of section 145 of the Cr. P. C. (hereinafter called the code). Should or should it not be taken to be conclusive until eviction in due

course of law and in presence of such a finding in favour of party, can a civil court while brushing this finding aside come to the conclusion that a

primafacie case exists in favour of the opposite party for issuance of a temporary injunction.

A primafacie case is the existence of legal right which through any act or omission on the part of defendants is threatened to be violated.

The most important question in this case is whether an entry in revenue record which supported the petitionerplaintiff would genuinely lend belief

to the learned Sub Judge that a primafacie case existed in favour of the plaintiff. When there was an express finding in terms of Subsection (6) of

section 145 of Cr. P. C. The proceedings in terms of terms of section 145 of Cr. P. C. culminate after the Magistrate records the findings with

regard to the possession of a party. That having been done, respondents herein were declared to be in possession of the land involved in the

proceedings and allowed to retain possession till eviction in due course of law.

The learned counsel wanted to urge before the court that the findings of a civil court must prevail upon one passed by the Magistrate in terms of

section 145 of Cr. P. C. This proposition is irrelevant in the instant case because the preponderance over findings of civil court or criminal court is

to be determined on the facts of every case. Here in the instant case, the order of ADM vests possession as legal right of possession in the

respondents till eviction under law. At the time of passing of impugned order, the trial court in my opinion could not override the findings of the

Magistrate as discussed above.

It will be proper to reproduce the relevant portion of the order of A. D. M. Kathua as under:

Taking all the available material into account, appreciating the arguments put forth by the counsel representing the parties and observations made

after spot visit. I irresistibly came to the conclusion that applicant was not in possession of the subject land prior to the institution of suit, it were

only the non applicant who enjoyed the possession of the land in question at the date when preliminary order was drawn considering the facts

coming into light after the spot enquiry. I do not find likely to cause breach of peace. The applicant's case therefore, is not maintainable and I

dismissed it. The attachment order issued earlier be treated as withdrawn with immediate effect. The nonapplicants will retain possession until

legally evicted.

The above order of the Additional District Magistrate is unequivocal and speaking. This order is an outcome of exercise of statutory powers

vested in the learned Addl. District Magistrate in terms of Sub Section (6) of section !45 of the Cr.P.C. This order which was not challenged has

assumed finality and vests rights in the respondents to hold the possession of the land until evicted therefrom in due course of law.

This has to remain in operation till an order of eviction under law is passed. The life of this order will be coterminous with passing of such eviction

order.

The suit filed is also before me and I have perused the plaint filed by the petitioner before the trail court. The plaint does not reveal as to how did

the petitioner come to hold the possession of the land after the 'respondentsdefendants were declared to be in possession by the Addl. District

Magistrate concerned. There is nothing on record to show that the respondentdefendants were ever evicted in due course of law, at any point of

time after 1980. Apart from having been evicted under law, the petitionerplaintiff could have obtained the possession of the land by force or by

surrender. Neither of these is pleaded nor can they ordinarily be perceived. The petitionerplain tiff's claim of possession and the trial court's belief

in existence of a primafacie case both are based upon an entry in the tenancy column of Girdwari of Kharif, 1990. What should have prevailed

upon the trial court for coming to the conclusion whether or not primafacie case existed in favour of the petitionerplaintiff? The order passed by A.

D. M. Kathua or the entry of revenue record. An answer to this question forms the sheetanchor of this case. Revenue entry with regard to the

relevant period may ordinarily be the most germane consideration for arriving at a conclusion that a primafacie case exists, but in the instant case

where the respondents have been declared to be in possession and were ordered to remain in possession till eviction in due course of law. An

entry in the revenue record pales into insignificance. ADM's finding in the instant case should have outweighed the entry in the Girdawari. This also

is a fact ordinarily A.D.M.'s order should have been registered in the revenue record., in absence of that having been done, the fate of the order

cannot be undone and the right vested in respondents cannot be negatived. As such in my opinion there existed no primafacie case in favour of the

petitionerplaintiff.

That being so, the trial court has erred in passing the order of injunction and the appellant court has rightly set the same aside and accepted the

appeal. I agree with the findings of lie Appellate Court and do not find any error of law or jurisdiction in the impugned order. The revision petition

is as such dismissed. However, there being no order as to costs.