Rajasthan High Court - Jaipur
Jhavarmal vs Purshottamlal And Anr. on 1 June, 2001
JUDGMENT Madam, J.
(1). Since the controversy raised by the parties in these four revision petitions is common being based on identical facts arising out of common impugned order, these petitions have been heard together at the joint request of the parties and are being finally decided by this common judgment.
(2), In Revision Petition Nos. 1468/99 and 1470/99 Jhavarmal (defendant) challenged the common order dated 15.9.1999 of the Additional District Judge No. 1 Sikar in appeal Nos. 54/99 & 55/99 whereby the order dated 23.8.99 of the Civil Judge (Sr.Dn) Fatehpur(Sikar) granting temporary injunction in civil suit No. 7/96 in favour of plaintiffs Purshottam & Shankarlal, has been modified.
(3). In Revision Petition Nos. 1640/99 & 1641/99 Purshottamlal & Shankarlal (plaintiffs) are aggrieved by the order dated 15.9.99 of the Additional District Judge No. 1 Sikar who while deciding civil appeal Nos. 54/99 & 55/99 of the defendant (Jhavarmal) set aside the temporary injunction granted by the trial Court by its order dated 23.8.1999, and then directed the parties to vacate the suit property and hand over the same to the Nazir of the trial Court and that the possession thereof shall remain in custody of the trial court till final disposal of the suit.
(4). These petitions arise out of the aforesaid orders having been passed on the application filed by the plaintiffs under Order 39 Rules 1 & 2 CPC seeking temporary injunction in their civil suit filed before Civil Judge (Sr.Dn.) Fatehpur(Sikar) for permanent injunction. It is perlinent to mention here that cross suit has also been filed by Jhavarmal against Purshottam and others for declaration and permanent injunction, besides application for temporary injunction, claiming his possession over the suit properly since 1948.
(5). The case of Jhavarmal in his reply to Purshottam's application for temporary injunction was that on the basis of adverse possession since 1948 over the suit properly he has acquired ownership thereon and thereby he has been residing there alongwith his family inasmuch as he has got constructed one kuchcha room, kitchen, latrine and tinshed etc. on the suit land and that apart Purshottam in his reply to the application filed by Jhavarmal for temporary injunction has admitted in his cross suit his possession over the suit land.
(6). On the contrary, the case of Purshottam in his reply to Jhavarmal's application for temporary injunction was that prior to 14.2.96 there was no possession of Jhavarmal nor he had any ownership over the suit land; and that despite there being temporary injunction in his earlier suit against Jhavarmal, on 14.2.1996 Jhavarmal's son Radhey shyam committed criminal trespass by forcibly taking possession of the suit.land, for which criminal court has found Jhavarmal guilty for such criminal trespass.
(7). An application for site inspection was also filed by the plaintiffs. One Advocate commissioner was appointed to inspect the site on 16.1.1996. He had prepared the site plan and also submitted his inspection report to the trial court, which shows that on 16.1.1996 the suit property was in possession of Purshotlam & Others; that there was no tin-shed, latrine, pucca room etc. on the suil land; that, the trial court had directed all the parties to maintain status quo as on 19.1.1996, bul on 14.2.1996, Radheyshyam s/o Jhavarmal allegedly in collusion with Suresh Kumar (defendant No.2) is purported to have trespassed over the suit land by erecting there tin sheds thereon, whereupon power of attorney holder of Purshottam lodged an F.I.R. at police station Fatehpur on 15.2.1996 upon which police investigated the matter and produced challan before the criminal court, which in criminal case No. 216/96 after due trial, recorded findings of guilt against Jhavarmal's son and Jhavarmal himself and thereby convicted them of the offence punishable under Section 447, IPC, on 4.5.1999.
(8). It is the case of Purshottam that as the suit property had been trespassed in collusion with defendant No. 2 Suresh Kumar, cross suit was filed on 24.2.1996 by Jhavarmal for declaration and permanent injunction alongwith temporary injunction in application (TI) No. 14/96, and wherein Jhavarmal admitted ownership of the suit land as that of Purshottam but the Jhavarmal pleaded his adverse possession thereon. Application for appointment of commissioner was moved, whereupon Shri Girdharilal Nirmal Advocate, was appointed Commissioner who inspected the site on 27.5.1996, and then submitted his report alongwith site plan. Even another Commissioner Shri Rajkumar Sharma Advocate inspected the site on 5.1.1997 and he too submitted his inspection report alongwith site plan.
(9). The learned trial Court heard both the parties on their TI Application Nos. 4/96 & 14/96 moved under Order 39 Rules 1 &2 CPC and by its common judgment dated 23.8.1999 accepted Tl Application dated 12.1.1996 of Purshottamlal & Shankarlal and granted temporary injunction by directing Jhavarmal & Suresh Kumar to deliver possession of the suit land to them (plaintiffs) and till final disposal, not to interfere with their possession, title, and peaceful use either at their instance or through any agent. Thus, Ti Application of Jhavarmai was dismissed, against which Jhavarmal preferred two Civil Misc. Appeals Nos. 54/99 & 55/99 before the Addl. District Judge No. 1, Sikar, who by its judgment dated 15.9.99 set aside the judgment dated 23.8.99 of the trial Court but issued temporary injunction directing both the parties not to sell the suit property and maintain status-quo and further directed the parties to vacate the suit land and deliver the possession thereof to the authorised person i.e. (Nazir) so appointed by the trial Court. Hence, these revision petitions have been preferred by both these parties.
(10). I have heard the learned counsel for the parties and also examined carefully perusing the judgments of both the courts below with reference to their contentions as well as legal aspect of the matter.
(11). Shri S.N. Shah, learned counsel for Purshottam & Shankarlal contended that both the trial Court as well as Appellate Courts have concurrently held that the plaintiffs (named above) have established prima facie case against Jhavarmal & Suresh Kumar. However, the Appellate Court has not disturbed the finding of fact arrived at by the trial court in favour of the plaintiffs as to the factum of balance of convenience & irreparable loss, inasmuch as, the Appellate Court while holding that Jhavarmal has no prima facie case as to the ownership & title of the suit land in his favour, specifically held that even from the report of second inspection it did not prima facie find that there has been possession of person residing at the suit land for last 50 years. Therefore, Shri Shah contended that there has been concurrent finding of the courts below against Jhavarmal as to their case of adverse possession of the suit land. Hence, the appellate court committed grave error of law in setting aside the trial Court's judgment as to the grant of temporary injunction.
(12). Contrarily, Shri R.P. Garg, learned counsel for Jhavarmal while reiterating the arguments canvassed before the Courts below and laying much emphasis on the report of Commissioner who was appointed on Jhavarmal's application, contended that once the possession of Pursholtam & Shankarlal over the suit land has not been found, no temporary injunction in mandatory form restoring possession to them could be granted either by the trial Court or by the appellate Court in a suit for permanent injunction and declaration, by directing dispossession of one of the parties like Jhavarmal, whose possession prima facie stands established from pleadings on record.
(13). Having considered rival contentions of the parties, prima facie, I am of the opinion that once there is concurrent findings of fact as to prima facie case of ownership and title in favour of the plaintiffs in their suit as well as cross suit, having been arrived at by the courts below, inasmuch as it is not a case of denial of title on the part of Jhavarmal rather ownership of Purshottam's forefather over the suit land was admitted by Jhavarmal in the plaint in his own suit for declaration & permanent injunction, as has been quoted by the appellant Court in its impugned judgment, and further once the appellate Court, itself, on the basis of site inspection report of the Commissioner in first suit found no possession of suit land in favour of Jhavarmal, and on the basis of second inspection report of Commissioner found only temporary possession of Jhavarmal, then, the appellate Court had obviously failed to take into consideration the judgment of criminal court in its true perspective whereby Jhavarmal & his son Radheyshyam were held guilty of offence of criminal trespass over the suit land punishable under Section 436 IPC and thus it committed error of law in setting aside temporary Injunction granted by the trial court for restoration of possession in favour of the plaintiff Pursholtam & Shankarlal and instead directed them to keep the suit land In custody of the trial Court.
(14). It is noteworthy to mention that Purshottam & Shankarlal instituted their suit for permanent injunction on 12.1.1996 and at their request Commissioner was appointed to inspect the site and who inspected the site on 16.1.1996 and as per his report, the suit property was in possession of Purshotlam & Shankarlal, thereby the trial Court directed the parlies to the suit to maintain status quo as on 19.1.1996. From the pleadings on record, as rightly pointed out by the Courts below in their respective judgments, prima facie it also stands established that on 14.2.1996 Radheyshyam S/o Jhavarmal had trespassed over the suit land by erecting tin sheds thereon, whereupon FIR was lodged on 15.2.1996 resulting into invesligation and production of challan and in Criminal Case No. 216/96 it culminated in conviction for offence of criminal trespass punishable under Section 436 IPC against Jhavarmat and his son.
(15). In the backdrop of above events, Jhavarmal after having trespassed over the suit land, instituted cross suit on 24.2.1996 for declaration and got inspection of site with a view to show his possession in a malafide manner. However, the Commissioner appointed on his request in second inspection report found only temporary possession of Jhavarmal and his report was on the basis of site inspection made in the absence of Purshottam or his representative, as is pointed out by the appellate Court in its judgment. Even the appellate Court itself at para 6 of its judgment has categorically recorded prima facie finding that as per Commissioner's report at the time of institution of first suit of Purshottam, Jhavarmal had no possession over the suit land. Thus, in my considered view, in view of aforesaid finding of possession over the suit land it ought not to have declined to affirm the injunction granted by the trial Court in favour of Purshottam and Shankarlal particularly when from the pleadings of the parties it stood duly established on record particularly from the FIR as well as the judgment of criminal Court as to act of criminal trespass on the part of Jhavarmal and his son over the suit land on 14.2.1996. In these circumstances, I do not find any merit in the contentions urged by Shri Garg on behalf of Jhavarmal and the impugned judgment of the appellate Court is not sustainable and deserves to be set aside. My view is fortified from the ratio of decisions cited by Shri Shah in Kamladevi v. Rani Avanti Bai S.S. Bharatpur (1); Vidyadevi v. Prem Prakash (2); K.V. Narayan v. S. Sharma Gowda (3); Satyanarain v. Shankarlal (4) and Vimladevi v. Jang Bahadur (5).
(16). In Vidyadevi v. Prem Prakash (supra), the matter pertained to Section 55(1), 67(d), 186, 13(2) of the Delhi Land Reforms Act 1954 and in a suit for partition of joint holding by co-bhumidhar, plea of acquisition of title by adverse possession to the holding of co-bhumidhar raised by a co-bhumidhar, the Apex Court held that such a plea is not available to the Bhumidhar against whom such suit is filed because the plea was being intended solely to oust the jurisdiction of Revenue Court to attract explanation to Section 186(1); and that the matter cannot be referred by the Revenue Assistant to the Civil Court for decision on title. The Apex Court held that plea of adverse possession was not specifically raised by selling out all requisite ingredients to constitute ouster and plea relating to title of suit property cannot be said to have been raised, therefore, Revenue Assistant was not obliged to frame any issue on question of title or to refer it to the Civil Court. The Apex Court held that "adverse possession" means hostile possession, that is, a possession" which is expressly in denial of the title of true owner and the denial of title of the true owner is a sign of adverse possession. The Apex Court Court placed reliance upon a decision in Ejas Ali Quidwai v. Special Manager, Court of Wards (6), wherein, it has been observed that a person who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
(17). Thus viewed from the above angle, it is a matter of fundamental principle of law that where possession can be inferred on the basis of a lawful title, it will not be considered to be adverse, and that the person who had been professing hostile title can legitimately acquire title by adverse possession provided that his hostile title or possession has continued uninterruptedly for the whole period prescribed for recovery of possession as against the true owner and then only he can plead such title in defence to his claim.
(18). However, in the instant case, Jhavarmal has not denied the title in his suit for declaration and permanent injunction claiming adverse possession and rather in para 2 of plaint in his suit, as quoted in impugned judgment of the appellate Court, he has specifically admitted title of Pursholtam, inasmuch as stated above, the courts below have recorded concurrent findings while deciding applications for temporary injunction as to the possession of Purshottam on the date of institution of his suit, i.e. 16.1.1996 and further from the pleadings on record it also stands established particularly from the report of second site inspection to the effect that Jhavarmal's alleged possession was not continued uninterruptedly for the entire period prescribed under the law for recovery of possession. In this view of the matter, prima facie in my considered view, both the Courts below have rightly held no prima facie case in favour of Jhavarmal on his TI application.
(19). In K.V. Narayan v. S. Sharma Gowda (supra) the Karnataka High Court held that trespasser in possession is not entitled to injunction against true owner; and that the Court should not grant injunction in favour of trespasser in long possession on the ground that true owner has lost his title because, the remedy of seeking the relief that he has become owner by adverse possession is available to him.
(20). In Satyanarain v. Shantilal (supra), in a suit for injunction instituted for restraining defendant from interfering in lawful possession of plaintiff from installing iron angle into defendant's adjacent wall for support of bathroom, the defendant removed the angles before service of notices of suit but after filing of the suit, this Court held that the defendant was fully aware of filing of the suit since the Commissioner had inspected the site and his act amounted to over reaching the process of law and therefore, rights of parties as they existed oh the date of filing of suit should be protected and in these circumstances temporary injunction was rightly granted by the Courts below.
(21). In Kamladevi v. Rani Avanli Bai (supra), this Court held that if in a particular case, provisions of Order 39 Rules I & 2 CPC do not provide for the mandatory injunction, the same can be done under inherent powers and it cannot be said that there is complete ban on powers of Court to grant mandatory injunction during pendency of case.
(22). In Vimladevi v. Jang Bahadur (supra) this Court held that the appellate Court should interfere only where trial Court's order is arbitrary or perverse or in disregard of sound legal principles or without considering all the relevant record and that where Court of first appeal against order under Order 39 Rules 1 & 2 CPC interferes with trial Court's order in disregard of above factors, order of appellant Court is without jurisdiction and may be set aside in revision under Section 115 CPC.
(23). I have also examined the ratio of decisions cited by Shri R.R. Garg on behalf of Jhavarmal viz. AIR 1971 SC 1244 (7), AIR 1980 Punj. & Har. 164 (8), AIR 1987 SC 1497 (9) and AIR 1992 Andh. Pradesh (10). The ratio of these decisions (supra) cited by Shri Garg are not attracted to the present case, keeping in view the conclusions arrived at by the Courts below derived from the pleadings of the parties on record which I have dealt with and with which 1 have concurred as indicated above. I may add that the second report of the Commissioner cannot be made the sole basis for drawing an inference of the existence of a prima facie case as to the possession allegedly of Jhavarmal, as against categorical conclusions drawn by the trial Court duly based on pleadings of Jhavarmal as well as Purshottam in their respective suit which established prima facie case as to possession of Purshottam on the date of institution of the suits in his favour. In this view of the matter, I do not find any perversity or arbitrariness in the order of the trial court or that it is not based on sound principles of Jaw. Therefore, there was no justifiable reason for the appellate court to have arrived at different conclusions than that of trial Court, in exercise of its' appellate jurisdiction at its mere askance, because the trial Court was to deal with the TI Applications in the light of the materials placed before it at that stage, to which the appellate Court has to apply its judicial mind logically and it should not have omitted to consider the same. Since the appellate Court has failed to meet out the reasons given by the trial Court and therefore, in my considered view the learned appellate Court committed material irregularity for having exercised its' jurisdiction illegally by interfering with the order of the trial Court by issuing different injunction contrary to the pleadings on record under impugned judgment, which deserves to be set aside.
(24). As a result of the discussion made above the revision petition Nos. 1468/99 & 1470/1999 filed by defendant Jhavarmal against plaintiff Purshottamlal are hereby dismissed. However, the revision petition Nos. 1640/1999 & 1641/1999 filed by plaintiff Purshottamlal against defendant Jhavarmal are allowed and consequently the impugned common judgment dated 15.9.1999 passed by the Additional District Judge No. 1, Sikar in Civil Appeal Nos. 54/99 & 55/99 in so far as it modified the judgment dated 23.8.99 of the Civil Judge (Senior Division) Fatehpur (Sikar) in Civil Misc. (TI) Case Nos. 4/96 & 14/96 is set aside. The temporary injunction granted by the trial court by impugned judgment dated 23.8.1999 (supra) stands upheld. No order as to costs. A copy of this order the sent to the courts below for compliance.