Patna High Court - Orders
Rajendra Rai & Ors vs Bindhyachal Pandey & Ors on 24 February, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.22536 of 2011
======================================================
Rajendra Rai & Ors
.... .... Petitioner/s
Versus
Bindhyachal Pandey & Ors
.... .... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ambuj Nayan Chaubey
For the Respondent/s : Mr.
======================================================
CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV ORDER
7 24.02.2012I have heard the learned senior counsel, Mr. Kamal Nayan Choubey on behalf of the petitioners and Mr. Sanjay Singh on behalf of the respondents.
(2) This application under Article 227 of the Constitution of India has been filed by the petitioners against the order dated 10.11.2011 passed by the District Judge, West Champaran, Bettiah in Misc. Appeal No.25 of 2011 whereby the Lower Appellate Court has set aside the order dated 06.04.2011 2 Patna High Court CWJC No.22536 of 2011 (7) dt.24-02-2012 2 / 10 passed in Title Suit No.154 of 2010 rejecting the plaintiff- respondent's application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure.
(3) It appears that the plaintiff-respondent filed Title Suit No.154 of 2010 for declaration of title and confirmation of possession on the ground that they have purchased this property from Kalika Thakur through registered sale deed dated 09.10.2009, 30.10.2009, 11.11.2009 and 14.11.2009. After purchase they were put in possession by the vendors. They purchased total area of 2 bigha 2 kattha 14 ½ dhur and 5 kattha. The defendants(petitioners of the writ application) have purchased Schedule-3 properties from Algu Kuer by registered sale deed dated 29.04.2010 and 08.05.2010. Total area purchased by them is 1 bigha 8 kattha 16 dhur. The admitted case is that in the year 1919, partition took place between the khatiyani raiyats. Branch of Gopal Pandey got 15 bigha whereas Makun Pandey, Ramcharan Pandey, Jangi Pandey each got 5 bigha. Ramcharan died in 1934. According to the plaintiff-respondent, this 5 bigha of Ramcharan Pandey came to Makun Pandey. According to the defendant, after death of Ramcharan Pandey, his 5 bigha came to Jangi Pandey. Further, according to the plaintiff, Makun Pandey died in 1962 whereas according to the defendant, Makun Pandey 3 Patna High Court CWJC No.22536 of 2011 (7) dt.24-02-2012 3 / 10 died in 1920. So, Jangi Pandey came in possession of total 15 bigha of land.
(4) During the pendency of the suit, the plaintiffs filed the injunction application under Order 39 Rule 1 and 2 praying for restraining the defendants from interfering with the possession of the plaintiff during the pendency of the suit. After hearing the parties, by terms of order dated 06.04.2011, the trial court rejected the said application. The plaintiff-respondent filed aforesaid Misc. Appeal before the District Judge. In the impugned order, the District Judge found that the Sub Judge has not considered all the facts in detail and he himself considered various evidences, i.e., documents filed by the parties and came to the conclusion that these facts not only show prima facie case in favour of the plaintiff but the balance of convenience is also in favour of the plaintiff and further held that if injunction is refused then it may cause irreparable injuries to them.
(5) From perusal of the impugned order passed by the District Judge, it appears that the Lower Appellate Court considered the documentary evidence of death of Makun Pandey which shows that he died in 1962 and the defendant did not file any document in support of their case that he died in 1920. The Appellate Court also considered the mutation proceedings in the 4 Patna High Court CWJC No.22536 of 2011 (7) dt.24-02-2012 4 / 10 name of the plaintiff-respondent, 107 Cr.P.C. proceedings, 144 Cr.P.C. proceedings and also the F.I.R. being Chanpatia P.S. Case No.20 of 2010 and prima facie found that the plaintiff appears to be in possession of the property.
(6) The learned senior counsel appearing on behalf of the petitioners submitted that the Lower Appellate Court has not considered the various documents filed by the defendants in the suit. The Appellate Court also came to wrong conclusion about the death of Makun Pandey on the basis of Hathchita only. The Lower Appellate Court has recorded finding of possession on the basis of the mutation proceedings. The Lower Appellate Court wrongly considered the 144 Cr.P.C. proceedings. The Lower Appellate Court has wrongly interpreted the FIR and 107 Cr.P.C. proceedings in favour of the plaintiff. According to the learned counsel, the mutation proceedings do not create title or possession in favour of any person. The learned counsel further submitted that if at this stage, if a finding is recorded that the plaintiffs are in possession then it will amount to pre judge the possession of the party. The vendor of the present plaintiff had filed Title Suit No.52 of 2010 for declaration of title which is still pending and, therefore, the plaintiffs have got no prima facie case. The learned counsel relied upon various decision of the Apex Court and 5 Patna High Court CWJC No.22536 of 2011 (7) dt.24-02-2012 5 / 10 Halsbury's Law of England and submitted that prima facie, the court will not grant an injunction to restrain an actionable wrong for which damage is an adequate remedy. Irreparable injury is meant injury which is substantial and could never be adequately remedied. The learned counsel relied upon (2006)5SCC 282, AIR 1993 SC 276 and 1994(1) PLJR 18 SC and submitted that the Lower Appellate Court has not considered above settled principles of law while granting injunction.
(7) On the contrary, the learned counsel appearing on behalf of the respondents submitted that this court is not exercising jurisdiction of Appellate Court. The Appellate Court has considered the evidences and prima facie he found the possession in favour of the plaintiff. This finding of possession is based on evidence and not mere surmises or conjecture. Therefore, in supervisory jurisdiction, the High Court cannot interfere in this finding of fact by appreciating the evidences or examining the sufficiency or otherwise of the materials available on record and substitute its own finding for the purpose of supervising the order passed by the Appellate Court. The learned counsel further submitted that although, in the rejoinder to the counter affidavit, the petitioners have stated that they filed various documents before Lower Appellate Court but Lower Appellate 6 Patna High Court CWJC No.22536 of 2011 (7) dt.24-02-2012 6 / 10 Court has not considered those documents but in fact, they had not filed any document before the court below. According to the learned counsel, the order passed by the Lower Appellate Court is within its jurisdiction and, therefore, only because some of the documents have not been considered, it cannot be said that the order passed by the Lower Appellate Court is without jurisdiction. The learned counsel submitted that the plaintiffs purchased the property earlier to the purchase of the defendants. They filed the suit for declaration of title and confirmation of possession and also for declaration that their sale deed is illegal and prayed for setting aside their sale deed. The plaintiffs are not praying for recovery of possession and moreover, only a small area is overlapping between the parties. After purchase, the defendants tried to dispossess the plaintiffs and, therefore, 107 Cr.P.C. proceeding was initiated, 144 Cr.P.C. proceeding was initiated and then FIR was lodged. If injunction is not granted then the defendant will dispossess the plaintiff. The dispossession from immovable property itself is irreparable injury.
(8) From the above contention of the parties, it appears that there is disputed question of title between the parties. Both of them are the purchasers. According to the case of the plaintiff, Makun Pandey died in 1962. According to the defendant, he died 7 Patna High Court CWJC No.22536 of 2011 (7) dt.24-02-2012 7 / 10 in 1920. If it is found that Makun Pandey died in 1962 then the plaintiffs will succeed. So far possession is concerned, the plaintiffs themselves have prayed for confirmation of possession only. It is not the case of the defendant that the plaintiffs are trying to dispossess them. As stated above, from perusal of the impugned order, it appears that the Lower Appellate Court has considered the cases of both the parties. The Appellate Court has also considered various evidences available on record.
(9) In the case of Surya Dev Rai vs. Ram Chander Rai and others, (2003)6 SCC 675, the Apex Court has laid down the principles where the supervisory jurisdiction under Article 227 of the Constitution of India is to be exercised. The relevant portion is quoted herein below:
"38. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (6) A patent error is an error which is self-evident i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning.
Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
8 Patna High Court CWJC No.22536 of 2011 (7) dt.24-02-2012
8 / 10 (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."
(10) This decision of the Apex Court has been followed subsequently in the case of Shalini Shyam Shetty reported in (2010)8 SCC 329 and again in 2011(3) PLJR 46 S.C. and also in (2010)9 SCC 385. In the case of Jai Singh and ors. Vs. Muncipal Corporation of Delhi and ors., (2010)9 SCC 385, the Apex Court has held that the High Court is expected to exercise the supervisory jurisdiction with great care, caution and 9 Patna High Court CWJC No.22536 of 2011 (7) dt.24-02-2012 9 / 10 circumspection. The exercise of jurisdiction must be within the well recognized constraints. It cannot be exercised like a "bull in a china shop" to correct all errors of judgment or order of a court, or tribunal, acting within the limits of its jurisdiction. The High Court cannot lightly or liberally act as an Appellate Court and re- appreciate the evidence. In the present case at our hand, as stated above, the finding recorded by the Lower Appellate Court is based on documentary evidences. It may be mentioned here that this finding recorded by the Lower Appellate Court is a prima facie finding for the purpose of injunction matter only. In view of the above settled proposition of law, the High Court in supervisory jurisdiction cannot examine the adequacy or inadequacy of evidences or the reasoning of the court below. In the facts and circumstances of the case, it cannot be said the Lower Appellate Court has no jurisdiction to set aside the order of the trial court. It is not a case of assumption of jurisdiction or that the Lower Appellate Court exercised the jurisdiction in the manner not permitted by law. The decisions relied upon by the learned counsel for the petitioners laid down the settled principles of law relating to injunction. It may be mentioned here that there is no dispute about the said settled principles of law laid down by the Apex Court in the aforesaid decisions. The question of 10 Patna High Court CWJC No.22536 of 2011 (7) dt.24-02-2012 10 / 10 supervisory jurisdiction is to be seen in the present case. Even if the High Court will come to another view which is possible the High Court has no jurisdiction to take that view in the supervisory jurisdiction when the Appellate Court has taken a view which is also possible.
(11) In view of the above settled proposition of law laid down by the Apex Court, the impugned order passed by the Lower Appellate Court cannot be interfered with in supervisory jurisdiction under Article 227 of the Constitution of India. Thus, this writ application is dismissed.
(Mungeshwar Sahoo, J) Saurabh/-