Smt. Bala Devi vs Ram Kumar and Others

Nirmal Singh, J.—This revision petition is directed against the order dated 10.9.2001 passed by Additional District Judge, Kaithal vide which he allowed the appeal of the defendants-respondent and set aside the order dated 2.11.2000 passed by the Additional Civil Judge, (SD), Kaithal and dismissed the application of the plaintiff-petitioner under Order 39 Rules 1 and 2 CPC read with Section 151 CPC.

The case of the petitioner is that Mansa Ram was owner of the land to the extent of 1/2 share of 844 Kanal -2 marlas. On his death, mutation was sanctioned in favour of Lal Singh defendant being son of Mansa Ram Lal Singh remained in possession of the land. However, respondents 1 to 5 in collusion with the revenue authorities and without arraying the petitioner and the performa respondents as party, filed an appeal against the sanction of mutation in favour of Lal Singh regarding the land owned by Mansa Ram who died in 1958. Respondents 1 to 5 kept the matter secret and the revenue authorities without issuing any notice to petitioner or any proforma-respondents, passed order dated 2.7.1999 and mutation No. 935 was sanctioned and prorata cut was imposed and land of the petitioner was illegally deducted and mutated in favour of respondents No. 1 to 5. Similarly, the land to the extent of 1/40 share of lal Singh, 1/40 share of Bakhtawari. 1/20 share of Krishan Singh, 1/20 share of Bala Devi, 1/40 share of Reshma and 1/60 share of Kreshni and 1/60 share of Nanhi was deducted and mutated in the name of respondents No. 1 to 5.

Alongwith the suit an application under Order 39 Rules 1 and 2 CPC was filed for interim injunction restraining respondents 1 to 5 from alienating, selling, mortgaging or creating any encumbrance over the suit property.

The defendants-respondents contested the suit and controverted the allegations. However, it was admitted that Mansa Ram was the owner of the suit land who died intestate in the year 1958 and under the provisions of Hindu Succession Act, his entire estate including the suit land has been inherited by defendant No. 7 Lal Singh and Smt. Kartari predecessor-in- interest of respondent 1 to 5 in equal shares being only class-1 heirs of said Mansa Ram defendant No. 6 and Kartari Devi became owner in possession of the suit land in equal shares and Smt. Kartari Devi died intestate about 19 years back leaving behind respondents 1 to 3 and Ajmer Singh father of defendant No. 4 and 5 as her only class-1 heirs and after his death her 1/2 share in suit land had been inherited by defendant No. 1 to 3 and Ajmer Singh in equal shares and therefore said Ajmer Singh died intestate and his 1/8 share in the suit land had been inherited by defendants 4 to 5 in equal shares and as such now defendants 1 to 5 are owners in possession of the suit land to the extent of 1/2 share.

After hearing the learned counsel for the parties, the learned trial court issued an interim injunction against the respondents not to alienate the property in any way till the disposal of the suit. Aggrieved by the order of the trial Court, the respondents filed an appeal before the Additional District Judge who vide impugned order accepted the appeal and dismissed the application filed under Order 39 Rules 1 & 2 CPC. Aggrieved by which the plaintiff-petitioner preferred this revision petition.

Mr. ML. Sarin, Senior Advocate appearing for the petitioner submitted that the learned lower appellate court has set aside the order of trial court without appreciating the documents in its right perspective. He submitted that the Assistant Collector 1st Grade, Kaithal passed the order dated 2.7.1999 in the absence of petitioner and mutation was also sanctioned at their back. He further submitted that the petitioner has been recorded as owner in possession of the land measuring 168 kanals 16 marlas being l/5th share of the total land. He contended that the order passed by the Assistant Collector 1st Grade is nonest, void and not binding on the rights of the petitioner. He further submitted that the lower appellate court has not recorded any findings that the order passed by the trial court is perverse, capricious, absurd and against the settled principles of natural justice. He further contended that any order which is nonest and void, the respondents cannot take benefit of it. In support of his submissions, he placed reliance on Chet Singh v. State of Punjab and Ors., 1997 P.L.J. 228, State of Haryana and Ors. v. Vinod Kumar and Ors. 1986 P.L.J. 161, Inder Sain and Ors. v. Paras Ram 1993 P.L.J. 586 Guru Nanak Education Trust (Regd.), Model Town, Ludhiana and others Vs. Sh. Balbir Singh and others, .

On the other hand, Mr. S.K. Garg Advocate appearing for the respondents submitted that petitioner has relied upon the entries made in the revenue record as well as of the mutation sanctioned in favour of Lal Singh. He contended that mutation does not confer any title and placed reliance on Sankalchan Jaychandbhai Patel and Others Vs. Vithalbhai Jaychandbhai Patel and Others, . He further submitted that Mansa Ram died in the year 1958 leaving behind Lal Singh and Smt. Kartari as legal heirs, Lal Singh succeeded in getting attested the mutation only in his favour regarding the entire suit land left by Mansa Ram. He further submitted that the inheritance never remains in abeyance. On the death of Mansa Ram, Kartari Devi also inherited the property of her father. He contended that Sahit Verasat can be corrected even if incorporated in the jamabandi without issuing notice to the parties. In support of his submission, he placed reliance on Murti and Anr. v. Hukam Chand 1996(1) R R R 225.

In Wander Ld. and Anr. v. Anotx India (P) Ltd. 1990 (2) A L R 399, the Apex Court has held as under:-

"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 injunction. 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 that 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."

Similar view has been expressed by this Court in Guru Nanak Education Trust'' case (supra) and it is para 18, it has been held as under;-

" A reading of the order passed by the Appellate Court shows that the said Court has no where recorded a finding that the trial court has recorded a finding of prima facie case, balance of convenience and irreparable loss without applying the settled principles of law or that it has ignored any material fact while recording a finding in favour of the plaintiff-petitioners. The lower Appellate Court has also not held that the conclusions recorded by the trial Court are perverse or are against the settled principles of law. Without recording any such finding, the Appellate Court has proceeded to contradict the conclusions recorded by the trial Court and in my opinion this course adopted by the Appellate Court has the effect of rendering its order as patently illegal and the one which has occasioned failure of justice."

In Chet Singh ''s case (supra) the Apex Court has held as under:-

"The proviso to Section 42 lays down that notice to interested parties to appear and opportunity to be heard are conditions precedent to passing an order u/s 42. The fact that the Additional Director was satisfied that the respondent, Gurdev Singh did not have an opportunity of being heard due to his illness seems to us to amount to a finding that the proviso could not be complied with so that the previous order could not be held to be an order duly passed u/s 42 of the Act. It could be ignored as "non est". The view taken in Harbhajan Singh''s case (supra) would not apply to the instant case although Section 42 of the Act does not contain a power of review. Orders which are "non est" can be ignored at any stage."

This Court in Inder Sains'' case (supra) has held as under:-

''''The ex-parte order without issuing notice to the defendant-respondent, passed by the Assistant Collector 2nd Grade on 13.1.1983, vide Exhibit P-11 known as "Sehat Intkal" is void and non est, because at that time civil litigation inter se the parties had commenced. The present suit was filed by the plaintiffs-appellants on 30.7.1982. Before filing the suit, there was an entry in the record of rights. Order dated 13.1.1983 (Exhibit P-11) is a non est and void order and is not binding on the defendant-respondent. It has been held by this Court in Lal Singh v. Gurmail Kaur and Ors. 1984 P.L.J. 463 that "Sehat Intkal" in the jamabandi in respect of earlier mutation, which has been reflected in a number of jamabandis which are prepared after every four years, is not admissible because it goes against the guide-lines contained in the Punjab Land Records Manual. Since the o''rder dated 13.1.1983 (Exhibit P-11) is a non est order, it can be ignored at any stage."

In view of the above judicial precedent. It is to be seen whether the lower appellate court was justified in setting aside the order of the trial court; whether there was prima facie case in favour of the plaintiff-petitioner or if the injunction is not issued then the plaintiff-petitioner will suffer an irreparable loss.

The lower appellate Court passed a lengthy order running into 14 pages but the learned lower appellate court failed to record a finding that the order passed by the trial Court was perverse, illegal, against the settled principles of law. The learned lower appellate court set aside the order of the trial court on the ground that if the respondents alienate the land during the pendency of the suit land that would hit the doctrine of lis pendence u/s 52 of the Transfer of Property Act but the rightful owner can not be restrained to exercise his legal right over the suit property.

The facts in this case that Mansa Ram was the owner of the land in dispute, after his death in 1958 and half of the share was mutated in favour of Lal Singh respondent No. 2 and the petitioner was recorded as the owner of 168 K-2M are not disputed. The mutation number 360 was challenged by way of appeal before the revenue authority and the Assistant Collector 1st Grade vide order dated 2.7.1999 sanctioned mutation No. 935 of sehet verasat and reduced the share of the petitioner and proforma respondents. It is also the admitted case that in the appeal before the Assistant Collector, 1st Grade vide which the sahit varsat mutation has been sanctioned, the petitioner and the proforma respondents were not party.

In the instant case, Sehat Intkal has been issued without impleading the petitioner and proforma respondent as party. Notice to the interested party to appear and opportunity of hearing are condition precedents as it has been laid down in Chet Singh''s case (supra). Admittedly the petitioner was not a party before the Collector. So the order passed by the Collector is a non est and it can be ignored at any stage. The learned Lower Appellate Court while dismissing the application of the petitioner has over looked this aspect of the case. The learned trial court has granted the ad-interim injunction after examining the pros and cons of the case that there was a prima facie case in favour of the petitioner and balance of convenience is also in her favour but the lower appellate court without recording the finding that order was perverse or illegal has set aside the well reasoned order passed by the trial Court.

For the reasons mentioned above, the petition is accepted and the order passed by the lower appellate court is set aside and the order passed by the trial court is re stored.