Prabhati Devi and Others vs Murlidhar and Others

Mahesh Bhagwati

By way of the instant writ petition, the petitioners have beseeched to quash and set-aside the order dated 23.9.2011 passed by Additional District Judge (Fast Track) No.2, Sikar Headquarter Sri Madhopur.

Having heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned orders, it is noticed that the plaintiff respondent filed a suit for perpetual injunction along-with an application for temporary injunction against the defendants petitioners. The learned trial court, having analyzed the matter in detail, found the primafacie case, balance of convenience and irreparable loss in favour of plaintiff respondent and resultantly allowed the application for temporary injunction vide order dated 27.5.2010. Aggrieved with the order dated 27.5.2010, the defendants-petitioners preferred an appeal before the Additional District Judge (Fast Track) No.2, Sikar Headquarter Sri Madhopur. The learned appellate court, vide its order dated 23.9.2011, dismissed the appeal of the defendants-petitioners and affirmed the order of the trial court. Hence, this writ petition.

The learned trial court while allowing the application for temporary injunction, observed that the plaintiff-respondent was using the disputed way in order to go to his fields situated in khasra nos. 457 and 458. The learned Appellate Court, having discussed the entire evidence ad-longum, dismissed the appeal of the defendants-petitioners and affirmed the order of the trial court. There has been a concurrent finding of fact of both the courts below.

The Full Bench of the Hon''ble Apex court in the case of AIR 1981 707 (SC) categorically observed that the Patna High Court clearly exceeded its jurisdiction in reversing the pure concurrent findings of fact given by the trial court and the then appellate court.

In the case of Mst. Kharbuja Kuer Vs. Jangbahadur Rai, , the Hon''ble Apex Court held that the High Court had no jurisdiction to entertain second appeal on findings of fact even if it was erroneous. In this connection, the Apex court observed as follows:

It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact.

As the two Courts, approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the said finding.

To the same effect is another decision of the Hon''ble Apex Court in the case of R. Ramachandran Ayyar Vs. Ramalingam Chettiar, where the Court observed as follows:

But the High Court cannot interfere with the conclusions of fact recorded by the lower Appellate Court, however erroneous the said conclusions may appear to be to the High Court, because as the Privy Council observed, however, gross or inexcusably the error may seem to be there is no jurisdiction u/s 100 to correct that error.

The same view was taken in two earlier decisions of the Hon''ble Apex court in the case of D. Pattabhiramaswamy v. Hanymayya reported in AIR 1959 SC 57 and Raruha Singh v. Achal Singh reported in AIR 1961 SC 1097.

In this case, the Hon''ble Apex Court observed that the High Court had no jurisdiction after reversing the concurrent findings of fact of the courts below and remand the case to the Additional Judicial Commissioner.

The conclusion, therefore, is inescapable that this Court should not invoke extraordinary jurisdiction under Article 227 of the Constitution to upset the pure findings of fact of two courts below. The scope of the High Court under Article 227 of the Constitution is limited. This extraordinary jurisdiction can be invoked only when the judgment of the court below is found to be perverse or contrary to material or it results in manifesting injustice. I do not find any ground to upset the pure findings of fact and thus, the writ petition filed by the petitioners deserves to be dismissed as the impugned judgments rendered by both the courts below do not warrant any intervention.

For these reasons, the writ petition fails and the same being bereft of any merit stands dismissed.

Consequent upon the dismissal of writ petition, the stay application, filed therewith, does not survive and that also stands dismissed.