Madhya Pradesh High Court
Churamani S/O Ramprapanna Brahmin And ... vs Ramadhar S/O Ganesh Prasad Brahmin And ... on 19 September, 1990
Equivalent citations: 1991(0)MPLJ311
ORDER S.K. Seth, J.
1. The plaintiffs-petitioners filed a suit (C. S. No. 14-A of 1983) for declaration and permanent injunction against the defendants-respondents in the Court of Second Civil Judge, Class II, Satna. According to the plaintiffs, pursuant to partition of joint ancestral lands between the common ancestors of the parties, the suit lands had fallen to the share of Badri and Brijbhushan and the remaining lands had fallen to the share of Ramnivas. On the death of Badri and Brijbhushan, the suit lands had devolved on Suryadeen, Shyamsunder and Ramsunder and, thereafter, as a result of partition between the said persons, they finally devolved on the plaintiffs. On the other hand, after the death of Ramni was, the other lands had devolved on his widow Sarmania and after her death the said lands devolved on defendants Nos. 1 to 11.
2. According to the further case of the plaintiffs-petitioners, though the suit lands had devolved on them in the manner as stated above, and they continued to be in possession of the same since then, the names of defendants-respondents came to be wrongly recorded as Bhumiswami of the said lands in the land records in 1975-1976 due to some mistake. According to the plaintiffs, the said mistaken mutation of the names of defendants 1 to 11 as Bhumiswami of the suit lands in the land records did not confer any right, title or interest in respect of the said lands in their favour and that otherwise also even if the defendants had any right, title or interest in the suit lands as alleged, they lost the same by virtue of the plaintiff's adverse possession over the same. It was explained by the plaintiffs that it was since the defendants were threatening to interfere with their possession over the suit lands on the basis of mistaken mutation of their names over the same that it became necessary for them to institute the suit in question for declaration and permanent injunction against them.
3. In their written statement, the defendants-respondents denied the case set up by the plaintiffs-petitioners. It was submitted by them that the plaintiffs were never in possession of the suit lands and that the said lands were in fact in possession of defendants Ramnihore, Ramnaresh, Rambahori and Jagdish Prasad. It was submitted by them that at the time of settlement of records the lands in question had been recorded in the name of Thakurdas, after the death of Thakurdas the lands came to be recorded in the name of Sarmania and after the death of Sarmania the names of defendants 1 to 11 were mutated over them. It was alleged by them that it was in fact the petitioners who were wrongly trying to interfere with the possession of defendants 2, 6, 8 and 10 over the suit lands.
4. In view of the case set-up by them, the plaintiffs, along with the plaint, made an application Under Order 39, Rules 1 and 2, Civil Procedure Code for grant of temporary injunction to restrain the defendants from interfering with their possession over the suit lands until the disposal of the suit. So also, in view of the defence taken by them, the defendants too made a similar application under the said provision for grant of injunction to restrain the plaintiffs from interfering with their possession over the suit lands until the disposal of the suit.
5. The trial Court i.e. Second Civil Judge, Class II, Satna vide its order dated 18-3-1988 allowed the application made by the plaintiffs and rejected the one made by the defendants. Accordingly, it, vide the said order, restrained the defendants from interfering with the plaintiffs' possession over the suit lands until the disposal of the suit. However, in the misc. appeal filed by some of the defendants against the said order Under Order 43, Rule 1, Civil Procedure Code, the Additional Judge to the Court of District Judge, Satna vide his order dated 8-4-1988 allowed the said appeal, set aside the order of temporary injunction passed by the trial Court in favour of the plaintiffs, and dismissed the application in question made by the plaintiffs. For the same reasons, it, vide the said order, allowed the application for grant of temporary injunction made by the said defendants Under Order 39, Rules 1 and 2, Civil Procedure Code for restraining the plaintiffs from interfering with their possession over the suit lands until the disposal of the suit.
6. Now, it is apparent that in the facts and circumstances of the case, in view of the restrictions contained in Section 115, Civil Procedure Code, as amended by Act No. 29 of 1984 in this State, it was not competent for the plaintiffs to take recourse to the ordinary remedy of revision against the abovesaid order passed by the Additional Judge to the Court of District Judge, Satna in an appeal Under Order 43, Rule 1, Civil Procedure Code directed against the order passed by the trial Court i.e. Second Civil Judge, Class II, Satna Under Order 39, Rules 1 and 2, Civil Procedure Code. It is for the said reason that being aggrieved by the said order the plaintiffs have approached this Court in this petition for exercise of its extraordinary power of revision/superintendence under Article 227 of the Constitution.
7. It is significant to note that while allowing the miscellaneous appeal filed by the defendants-respondents before him Under Order 43, Rule 1, Civil Procedure Code one of the relevant provisional findings arrived at by the Additional Judge to the Court of District Judge, Satna was that from the material on record it did not appear that the plaintiffs-petitioners were in possession of the suit lands on the date of the institution of the suit. It was on the basis of the said finding arrived at by him that the Additional Judge did not find the plaintiffs entitled to grant of temporary injunction Under Order 39, Rules 1 and 2, Civil Procedure Code against the defendants. Accordingly, in this petition under Article 227 of the Constitution, the question which arises for consideration is whether the finding of fact in question arrived at by the Additional Judge is perverse, or not based on any material whatever, or has resulted in manifest injustice, for, in the absence of any such pre-requisite, this Court would not be justified in interfering with the said finding in exercise of its jurisdiction under the said Article
8. As already mentioned earlier, as per the plaintiffs-petitioners' own case, the names of defendants-respondents stood recorded as Bhumiswami of the suit lands in the land records since 1975-1976. It is no doubt true that the said fact was tried to be explained by them by pointing out that the entries to the said effect were recorded erroneously and it was in fact they who continued to be in possession of the suit lands all along. But, then, there is not even a whisper in the pleadings of the plaintiffs-petitioners or in the material produced by them in support of their case indicating as to how and in what circumstances the said entries came to be recorded erroneously. Accordingly, it is apparent that the explanation tried to be offered by the plaintiffs could not replace the presumption of law in favour of the defendants Under Section 117 of the M. P. Land Revenue Code, 1959. (See : Harbilas v. Jandel Singh, 1987 R. No. 167 (HC). The fact that the defendants were recorded as Bhumiswami of the suit lands in the land records since 1975-1976 raised a presumption regarding their title and possession over the said lands under the said section and until anything contrary to the said presumption was shown or proved by the plaintiffs the Court could safely rely on it for the purpose of arriving at the relevant finding.
9. It is emphatically contended by the learned counsel for the plaintiffs-petitioners that while reaching the relevant finding as mentioned above, the appellate Court i.e. the Additional Judge to the Court of District Judge, Satna ignored altogether the documentary evidence indicating that even though the defendants were recorded as Bhumiswami of the suit lands in the land records since 1975-1976, in the remark columns of Panchsala Khasras for the period 1963-1964 to 1981-1982 the actual forcible possession over some of the suit lands was recorded to be that of the plaintiffs. It is contended by the learned counsel that on the basis of the said remark column entries the appellate Court ought to have drawn a presumption regarding 'continuity of possession' in favour of the plaintiffs in respect of the said lands and ought to have found them to be in possession of the said lands on the date of institution of the suit. In the said connection, reliance is placed by the learned counsel on a decision of this Court (Mishra, J.) in Chhitoo Hirajee v. Sakharam, 1982 MPLJ 499.
10. We find ourselves unable to accept the abovesaid contention of the learned counsel. In our opinion, no presumption of correctness can attach to an entry made by a Patwari in the remark column of a Khasra or field-book showing therein some third party/trespasser to be in possession of a land held by a Bhumiswami and recorded as such in his name in the said land record.
11. The general provision as regards raising of presumption is contained in Section 114 of the Evidence Act. It is illustration (e) of the said section which is relevant for our present purpose. According to it, the Court may presume that judicial official acts have been regularly performed. Now, 'regularly performed' means 'done with due regard to form and procedure'. (See : Than Singh and Ors. v. Union of India, AIR 1955 Punjab 55 (DB) It presupposes mandatory provisions of procedure in which case alone in the absence of any evidence to the contrary the Court would presume that all rules and legal forms were complied with. In other words, such a presumption cannot be raised where the provisions of procedure which are required to be presumed to have been complied with are not mandatory but only enabling. See : Sonachalam Pillai and Ors. v. Kumaravelu Chettiar and Ors., AIR 1928 Mad. 77 (FB).
12. For our present purpose, the special provisions with regard to raising of presumption are contained in Section 117 of the M. P. Land Revenue Code, 1959. According to the said section, all entries made under Chapter IX (containing Sections 104 to 123) in the land records shall be presumed to be correct until contrary is proved. Taking even a broader view of the section, it has been held that the presumption under the section applies only to those entries which are required to be made under the law. Thus, even as per the broader view, the presumption arises only in respect of those entries which are required to be made under Chapter IX and in respect of entries in other land records prepared under the Code. See : Harising v. Dhiraj Singh, 1983 R. N. 57 (HC). It follows that if any entry existing in a land record is not required to be made under Chapter IX of the Code or under any other provisions, of the Code, no presumption of correctness can arise in respect of such entry. Thus, if a Pujari is entered in possession of the temple or deity such entry gives rise to no presumption of correctness. Similarly, an entry showing the status of a person as an adopted son of his father has no presumptive value as this is not required to be made under the Code. See : Hariharsingh Sukhiram v. Deonarayan Bodhram and Ors., AIR 1954 Nag. 319. (DB).
13. In Mithila Prasad and Anr. v. Ranguandar Singh and Ors. M.C.C. No. 1035 of 1981, decided on the 17th June 1985 (Seth, J.) it has been discussed in detail as to what are the land records that are required to be prepared and maintained under the Code and what are the matters in respect of which entries are required to be made in a Khasra or field book under Chapter IX. As has been pointed out in the said case, in so far as the matter relating to occupation of lands is concerned, it is apparent from the relevant provisions of the Code and the rules relating thereto that the entries that are required to be made by a Patwari in a Khasra or field book have to state the name of occupier, right in which the land is held and land revenue or rent payable in respect of it. Column 3 of Panchsala Khasra in Form -I is meant for the said purpose. In those cases in which lands are in occupation of a lessee of a Bhumiswami or a sub-lessee of an occupancy tenant, the entries have to further state the name of such lessee or sub-lessee, rent or lease money payable by him, and the area of portion sublet to him. Column 4 of the Khasra is meant for the said purpose. In those cases in which any person has lawfully acquired any right or interest in respect of any land, he is required to report his acquisition of such right to the Patwari or the Tahsildar Under Section 109. The necessary entry is thereafter made by the Tahsildar in the said regard after following the procedure prescribed Under Section 110'.
14. As has been pointed out in Mithila Prasad's case (supra), apart from the matters mentioned above, the provisions of Chapter IX of the Code or even other provisions of the Code, including the Rules framed in respect of them, do not require a Patwari to make any other kind of entry in a Khasra or field book in respect of the matter relating to occupation of lands. He is not required to make any entry in the remark column or any other column of a Khasra or field book with regard to any person other than the recorded holder being in occupation of the land unauthorisedly or on the basis of any imperfect title. It is obvious that in case he does make any such entry the same cannot have any presumptive value as regards its correctness Under Section 117 of the Code. See : Harihar singh's case (supra).
15. As far as raising of presumption Under Section 114(e) of the Evidence Act is concerned, there is no reason to think that the term 'official act' as used in the said section has not to be understood in its plain and grammatical meaning of an act which is 'authorised' or 'lawful'. In other words, an official act has to be an act regarding which there is a 'duty' cast on the official concerned to perform it. In the said connection, reference may be made to a decision of the Supreme Court in Shivlal v. Chetram, AIR 1971 SC 2342 where it has been explained that unless it is shown that the official concerned had a duty to do the particular act, the question of drawing any presumption Under Section 114(e) regarding the said act having been regularly performed does not arise. As has already been seen earlier, the relevant provisions of law i.e. the M. P. Land Revenue Code, 1959, and the rules framed thereunder, do not cast any duty on a Patwari to make any entry in the remark column or in any other column of a Khasra or field book in regard to any person other than the recorded holder being in occupation of the land unauthorisedly or on the basis of any imperfect title. Accordingly, there arises no question of drawing any presumption Under Section 114(e) regarding any such act of the Patwari having been regularly performed.
16. Accordingly, in our opinion, in the facts and circumstances of the case, the appellate Court i.e. the Additional Judge to the Court of District Judge, Satna did not act improperly or with illegality in refusing to draw any presumption as regards 'continuity of possession' of the plaintiffs-petitioners over the suit land on the basis of their so called 'actual' possession having been recorded by the Patwari in the remark column of the Khasras for the period 1963-1964 to 1981-1982.
17. Thus, the impugned order dated 8-4-1988 passed by the Additional Judge to the Court of District Judge, Satna, allowing the miscellaneous appeal filed before him by the respondents, and setting aside the order of temporary injunction passed by the trial Court in favour of the plaintiffs/petitioners is proper and there is no case made out whatever for interfering with it in this petition under Article 227 of the Constitution. But, then, as mentioned above, the said order was not confined to merely rejecting the application for grant of temporary injunction made by the plaintiffs-petitioners. It went further and allowed a similar application for grant of temporary injunction made by the defendants-respondents. As stated earlier, the said part of the order is also under challenge by the plaintiffs/petitioners in this petition.
18. Having heard the learned counsel for the parties, we are of the opinion that the challenge made by the plaintiffs-petitioners to the abovesaid part of the impugned order is well-founded. There is an error of law apparent on the face of the impugned order in that regard and the said part of the order is liable to be set aside in exercise of this Court's extraordinary power of revision/superintendence under Article 227 of the Constitution.
19. Now, though the defendants-respondents styled their application for grant of temporary injunction to be one under Rules 1 and 2 of Order 39 Civil Procedure Code it is clear from a perusal of the provisions contained in the said Rules that Rule 2 was not attracted in respect of the type of temporary injunction sought for by them. Under the said Rule, a temporary injunction could be issued only in favour of a plaintiff against the defendant. (See : Election Officer v. Abdul Ghani, AIR 1923 Lahore 47) Moreover, the said Rule dealt with the grant of temporary injunction in a particular class of cases, not covered by the provisions of Rule 1 viz., cases of apprehended breach of contract or other injuries of any kind. Thus, the said Rule i.e. Rule 2 had no applicability for grant of temporary injunction to the application made by the defendants-respondents.
20. That leaves us with the question whether the application made by the defendants-respondents was maintainable Under Rule 1 of Order 39. Under the said Rule, a temporary injunction could be granted by the Court under three different situations as specified in clauses (a),(b) and (c) thereof. The said situations are as follows : (a) that any property in dispute in a suit was in danger of being wasted, damaged or alienated by any party to a suit or wrongfully sold in execution of a decree; or (b) that the defendant threatened or intended to remove or dispose of his property with a view to defrauding his creditors, or (c) that the defendant threatened to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit. Thus, while in a situation covered by clause (a), a temporary injunction could be granted to either of the parties i.e. to the plaintiff or the defendant (See : Sivakami Achi v. Narayana Chettiar, AIR 1939 Madras 495) in the situation covered by clauses (b) and (c) a temporary injunction could be granted to the plaintiffs alone and not to the defendant except perhaps in a case where the defendant filed a counter-claim in respect of the same property and was thus himself in the position of a plaintiff.
21. In the case before us, as mentioned earlier, in the application made by them Under Order 39, Rules 1 and 2, Civil Procedure Code the temporary injunction sought by the defendants-respondents against the plaintiffs-petitioners was to the effect that since the plaintiffs-petitioners threatened to dispossess them from the suit lands, they be restrained from doing so until disposal of the suit. It is thus apparent that the type of injunction sought by the defendants-respondents was of the nature covered by clause (c) of Rule 1 of Order 39. But, then, since in a situation covered by clause (c) of Rule 1 a temporary injunction could be granted to a plaintiff alone and not to a defendant, it follows that no temporary injunction of the nature sought by the defendants-respondents could be granted to them in a suit instituted by the plaintiffs-petitioners. There was an error of law apparent on the face of the impugned order in that regard and the said part of the order is, therefore, liable to be set aside.
22. Consequently, for the reasons stated above, the petition is partly allowed. The order dated 8-4-1988 passed by the Additional Judge to the Court of District Judge, Satna in so far as it disallowed the application for grant of temporary injunction made by the plaintiffs-petitioners does not call fore interference. The said part of the said order is accordingly maintained and the petition made by the plaintiffs-petitioners is dismissed to the said extent. However, there is an error of law apparent on the face of the said order in so far as it allowed the application for grant of temporary injunction in favour of the defendants-respondents. The petition is allowed to the said extent and the said part of the order is set aside. In the result, the temporary injunction granted by the Additional Judge to the Court of District Judge, Satna in favour of the defendants-respondents shall stand vacated and the application made by them Under Order 39, Rules 1 and 2, Civil Procedure Code shall stand rejected.
23. We direct that in the facts and circumstances of the case, there shall be no order as to the costs of this petition.