Swaran Singh vs Karam Singh

G.C. Garg, J.

The parties to this contempt petition are real brothers. Petitioner filed a suit against the respondents for declaration to the effect that he was the sole owner in possession of the land measuring 104 Kanals 19 Marlas situated in village Arli, Bhan, Tehsil Batala as entered in the jamabandi for the year 197778 and that they had no right to interfere in his peaceful possession over the said land. This land included the land comprised in Rect. No. 48, Killa No. 3. Suit was decreed by judgment and decree dated October 16, 1986. Petitioner was held to be the owner and in continuous possession of the suit land since 1961, Respondents were restrained from interfering in the peaceful possession of the petitioner over the suit land. Will executed by Teja Singh father of the parties in respect of this land in favour of the respondents was rejected by the trial Court. Appeal there against filed by the defendantrespondent was allowed by learned Additional District Judge vide judgment and decree dated August, 19, 1988. It has held by the appellate Court that the petitioner was not the exclusive owner of the land in dispute on the basis of family settlement or by way of adverse possession. It was further held that the petitioner was entitled to succeed to the land in dispute which forms part of the estate of Teja Singh to the extent of onethird. A reading of the judgment of the appellate court goes to show that the learned Additional District Judge nowhere recorded a finding that the petitioner was not in possession of the land measuring 104 Kanals 19 Marlas though he did record that the petitioner had failed to prove that he was the owner by way of adverse possession.

Aggrieved by the judgment and decree of the learned appellate Court, petitioner filed Regular Second Appeal 2948 of 1988 which was admitted to a regular hearing on April 28, 1989 when the respondents were restrained from dispossessing the petitioner from the land in dispute.

Petitioner thereafter filed the present contempt petition on the allegations that despite the restraint order of this Court passed on April 28, 1989, which was fully within the knowledge of the respondents, the latter forcibly entered in his land measuring 7 Kanals 7 Marlas comprised in Killa No. 3 of Rect. No. 48, on July 22, 1990 and respondent No. 2 dug a bore for installation of electric tubewell in Killa No. 3 which was in petitioner''s actual physical possession. It was thus, prayed that this action on the part of the respondents was totally in contravention of the aforesaid interim order, and they be, therefore, punished under the Contempt of Courts Act.

In response to the notice, initially both the respondents put in appearance and filed their separate replies. However, later on Karam Singh respondent No. 1 who is serving the Indian Army brought on record a certificate to show that on July 22, 1990, the date on which the bore had been allegedly dug, he was on active duty. Since the primary allegation of the petitioner for digging the bore was against respondent No. 2, A.L. Bahri, J. (as his Lordship then was) discharged the rule issued against respondent No. 1 by order dated January 21, 1994. His Lordship thereafter concluded that evidence was required in order to ascertain as to whether on April 28, 1989 when the interim order was passed, petitioner was actually in possession of the disputed land and whether the bore was dug on July 22, 1990 or much prior to that. The matter was then referred to the learned District and Sessions Judge, Gurdaspur for a report on the aforesaid points in order to arrive at a correct conclusion. In pursuance of the order dated January 21, 1994, learned District and Sessions Judge, Gurdaspur afforded opportunity to the parties to lead evidence in support of their respective pleas and on consideration of the entire matter and the evidence led before her as also taking into consideration the facts and circumstances of the case came to the conclusion that Swaran Singh was actually in possession of the suit land on April 28, 1989 and that the bore was dug on or about July 22, 1990 and not much prior to that. The report is available on the record.

After the receipt of the report, the matter was taken up for hearing. Petitioner, who appeared in person and Mr. D.S. Chanan, Advocate, learned counsel for the respondents were heard.

It is true that the question of ownership and possession between the parties is sub judice in the Regular Second Appeal, but at the same time, the parties are legally bound to obey and adhere to the interim order that are passed in the pending proceedings. Any violation, contravention or disobedience, intentional or deliberate of interim orders by a party against whom such an order has been passed is punishable under the Contempt of Courts Act. However, in these proceedings the petitioner, who appeared in person, submitted that he was in possession of the land in dispute for the last about 30 years when it was given to him by his father, Teja Singh by way of family settlement in the year 1962 and he continues to be in possession of the said land viz. 104 Kanals 19 Marlas till today except the land measuring 7 Kanals 7 Marlas comprised in Killa No. 3 Rect. No. 48 from where he had been dispossessed by the respondents after the grant of stay by this Court on April 28, 1989. He further submitted that not only was he dispossessed but the crop sown by him was also taken away by the respondents and respondent No. 2 dug a bore in Killa No. 3 of Mustil No. 48 for installation of electric tubewell. Respondent No. 2 who came present in Court on April 27, 1995, was also heard. During the course of hearing, he offered to make a statement which has been reduced into writing and has been placed on the record. It was categorically stated on oath by respondent No. 2 that he was in possession of Mustil No. 48, Killa No. 3, and there is a tubewell bore on this land. He further stated that he is in possession of this piece of land for the last 13 years and that he is not ready and willing even now to surrender the aforesaid piece of land. In the written statement filed to this contempt petition by Dharam Singh, Respondent No. 2, the stand taken by him was that the respondents had taken over the possession of the land in question in the year 1985 under the orders of the Assistant Collector and that this fact was borne out by the jamabandi for the year 198788 wherein they have been shown to be in possession in the column of cultivation. Learned counsel for the respondents as well, submitted that Khasra girdawaris were ordered to be corrected in favour of the respondents as they were found to be in actual physical possession of the land on personal verification by the revenue authorities of the portion at the spot. They are being shown as such in the revenue record even now. Digging of bore on the land was, however, admitted by the learned counsel, but it was submitted that the same was dug much prior to April 28, 1989 when the interim order was passed in the Regular Second Appeal.

However, from the facts available on the record, it is borne out that order of correction of Khasra Girdawaris in favour of the respondents passed by the Assistant Collector, was set aside by the appellate Court on appeal filed by the petitioner and no valid order is existing as on today passed either by the revenue authorities or the civil court holding the petitioner to be not in possession of the land in question. Since the Girdawari was corrected and given effect to in the revenue record because of the order of the Assistant Collector, the entry is continuing despite the order of the Collector setting aside the order of the Assistant Collector, no further action has been taken by the authorities in view of the pending civil litigation between the parties. The revenue entries therefore do not help the respondents to show that they are in pos session of the land in question prior to the passing of the order of stay.

It will also not be out of place to mention here that the learned District and Sessions Judge, Gurdaspur on a consideration of the entire evidence led before her by the parties as also the facts and circumstances of the case, has in very clear terms opined vide her report dated May 28, 1994 that Swaran Singh petitioner was actually in possession of the suit land on April 28, 1989 and that the bore was dug on or about July 22, 1990 and not much prior thereto. Thus, in the wake of the facts and circumstances of the case and also the report of the learned District & Sessions Judge, Gurdaspur as noticed above, no doubt is left in coming to the conclusion that on April 28, 1989 the petitioner was in possession of the suit land including Killa No. 3 Rect. No. 48 and the respondents forcibly, illegally and without any authority of law interfered in his possession by entering into the land in question on or about July 22, 1990 and respondent No. 7 dug a bore for installing electric tubewell there. In other words, respondent No. 2 by dispossessing the petitioner from the land which was in his physical possession and digging a bore there, has disobeyed the interim order of this Court passed in the appeal on April 28, 1989. It may be mentioned here that there is no dispute about the fact that the aforesaid interim order was within respondents'' knowledge. It may further be noticed that petitioner has clearly alleged in his contempt petition itself that the said interim order was within the knowledge of the respondents. This fact has not been controverted or explained by any of the respondents in their reply. Moreover, this is not the case of the respondents that they were not aware of the interim orders of this Court. It has been clearly noticed by the Collector, Batala while passing order on petitioner''s application that order dated April 28, 1989 passed by this Court was within the knowledge of the respondents. JUDGMENT of the Collector, Batala is available on the record as Annexure P 2.

There is still another aspect in coming to the conclusion that the petitioner was in possession of the land and the stand taken by the respondents that they are continuing in possession of the land for the last about 13 years is false. The Assistant Collector ordered correction of Girdawari in favour of the respondents by order dated 30.4.1985. In spite of this order of correction of entry, the learned trial Court by judgment and decree dated 16.10.1986 came to a conclusion that the petitioner (plaintiff) was in possession of the land. This finding could be agitated in appeal, but the appellate court did not set aside this finding regarding possession. Even after the grant of interim order by this Court in the year 1989, it was open to the respondents, if they were in possession to get the order vacated, modified or clarified, but they did not choose to do so and taking the law in their own hands dispossessed the petitioner. It was not open to them to ignore the order of this Court and bypass the same and dispossess the other side. This action cannot but be said to be a deliberate act on the part of respondent No. 2. He can safely be said to have intentionally and wilfully disobeyed the order and in violation thereof taken possession and installed a tubewell after digging a bore.

For the foregoing circumstances, I have no hesitation to hold respondent No. 2 guilty of flagrant violation and wilful disobedience of the interim order of this Court passed on April 28, 1989. Thus, he deserves to be punished accordingly, under the Contempt of Courts Act being guilty of having committed contempt of this Court.

It is a widely accepted principle that measure of punishment depends upon the facts and circumstances of each case. The real object of punishment is to prevent the recurrence of lawbreaking acts by the persons who have little or no value for the orders that are passed. The measure of punishment varies from case to case and according to prevalence of a particular fact of mischief. It is the experience of this Court that the lenient attitude shown to such contemners is mostly viewed as if this Court is powerless to purge them. I am conscious of the fact that it is the foremost duty of the Court to maintain an atmosphere of complete assurance to the public of fair treatment and full justice. Thus, keeping in view the gravity of the mischief done by the contemner, respondent No. 2 and in the higher interest of the society, I am constrained to take a serious view. In the circumstances, I am not inclined to accept the unconditional apology tendered by respondent No. 2 in his written statement, while holding him guilty under the Contempt of Courts Act. Respondent No. 2 is convicted and ordered to undergo simple imprisonment for a period of four months and also to pay a fine of Rs. 2,000/. In default of payment of fine, respondent No. 2 will further undergo simple imprisonment for one month. The amount of fine, if realised, be paid to the petitioner by way of costs, having regard to the fact that the crop sown by him had been harvested by the respondents and taken away. Petition stands allowed.

At the oral request of the learned counsel for respondent No. 2, the operation of this order shall remain stayed for a period of 15 days to enable the respondent to file appeal if so advised. In case he decides not to file an appeal or the sentence awarded is not suspended he shall immediately on expiry of 15 days surrender before the learned Sessions Judge, Gurdaspur for undergoing the sentence.