(Oefendant No.l) v. Limi'ted

HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal No. 111 of 2012 Appellant Defendant No.1 D.B. Power Limited Versus Respondents Darshan Das and others ORDER ForPronouncement of ORDER ^3.08.2013 Sd/- N.K. Agarwal Judge ^,'7.08.2013 $)0 HIGH COURT OF CHHATTISGARH AT BILASPUR Misc.Appeal No.111of2012 APPELLANT (DefendantNo.1) D.B.Power Limited Versus RESPONDENTS Darshan Das and others MISC. APPEAL UNDER ORDER 43 RULE 1 (rt OF THE CODE OF CIVIL PROCEDURE. 1908 t-' SB:- HON. SHRI N.K. AGARWAL. J. PRESENT :- Shri B.P.Sharma, counsel for the appellant. Shri Sarfaraj Khan and Shri Kamal Kishore Patel, counsel respondentNo.1. Shri Pawan Kesharwani, P.L. for the State/respondent No.2 ORDER (Passed on ^3 .08.2013)

1. Instant appeal assails the legality, validity and propriety of the order dated 18.10.2012 passed by the 2nd Additional District Judge, Sakti, District Janjgir-Champa in Civil Suit No. 24-A/12, wherebyand whereunder plaintiffs application for grant of temporary injunction filed under Order 39 Rules, 1 & 2 of the Code of Civil Procedure, 1908 (for short 'the CPC') has been allowed by the trial Court dismissing the appellant's application.

2. Facts of the case, in brief, are as under: (i) Respondent No.l/plaintiff instituted a suit for declaration injunction against appellant respondents/defendants No.2 to 4. Plaintiff also filed an application for grant of temporary injunction. 91 '^»».,.^ "^.^m^'^' (ii) .^ According to the plaintiff, in past his grandfather, father and mother were Kotwars and at present he is Kotwar bearing village Badadaraha. The Kh.Nos.497, 501, 517, 525, 530 and 758, total area

10.49 acres, is a Kotwari land. Earlier, his ancestors and now he is in its possession. Sub-Divisional Officer, Dabhara vide order dated 21.03.2012 passed in revenue case No.04-A-19/2011-12 has conferred its Bhumiswami rights in plaintiff's favour. The land stands recorded in their name since 1954-55, and therefore, the order passed by the Collector dated 31.01.2009 (Annexure A/2) and the lease deed (Annexure A/3) Industrial executed the Chhattisgarh State Development Corporation Limited, Raipur in appellant's favour are illegal, void and ineffective. However, the appellanVdefendant No.1 pursuant above, threatening to dispossess the plaintiff and to raise construction over it. (iii) By filing written statement, while denying the plaintiffs claim, appellant also preferred a counter claim seeking relief of declaration to the effect that the order dated

21.3.2012 passed by the Sub-Divisional Officer is void and not binding uponit and for permanent injunction . Appellant also filed an application for grant of temporary injunction. (iv) The trial Court, having found in the year 1954-55 the suit land was recorded in the name of plaintiff's father - Shiv Prasad, in the year 1992 in the name of his mother - Dev Kumari and now in his name as per B-1 Khasra Panchshala of the year 2011-12, held the plaintiff has It prima facie proved his possession over the suit land. has been further held by the trial Court that the S.D.O. W) ^'<!<s^s^ A'u x*^.. ^. has passed the order under Section 57 (2) of the M.P. / C.G. Land Revenue Code, 1959 (for short 'the Code'), and therefore, the other part of order wherein it has is entitled for been mentioned that the plaintiff compensation and the appellant-Company is in its possession is prima facie not in accordance with law, allowed the plaintiffs application and dismissed the defendant No.l's application for grant of temporary injunction. 1,.-

3. I have heard learned counsel for the parties and perused the paper book.

4. Admittedly, the land in dispute was service land as defined under Section 183 of the Code. It is also not in dispute, the plaintiff is Kotwar of the village. Even without entering into merits of the order passed by the S.D.O. regarding conferrat of Bhumiswami ^4 rights upon plaintiff, is clear as crystal in past plaintiffs ancestors and now the plaintiff is in possession of the suit land at least as Kotwar. There is no material brought on record to show how and in what manner the possession of the suit land has been taken over from the plaintiff and handed over to the appellant.

5. Sections 183 and 237 of the Code read as under: "183. Service Land.—(1)Any person holding land on the condition of rendering service as village servant shall cease to be entitled to such land if he diverts such land to non- agricultural purposes. (2) A transaction by which a village servant attempts to transfer his interest in his service land by sale, gift, mortgage, sub-lease or otherwise except by a sub-lease for a period not exceeding one year, shall be void. (3) If the holder of such land dies, resigns or is lawfully dismissed the land shall pass to his successor in office. "s?-" °)> (4) The right of the holder in such land shall not be attached or sold in execution of a decree nor shall a receiver be appointed to manage such land under section 51 of the Code of Civil Procedure, 1908 (V of 1908)." "237. Collector to set apart land for exercise of Nistar rights.- (1) Subject to the rules made under this Code, Collector may set apart unoccupied land for the following purposes, namely,— (a) for timber or fuel reserve; (b) for pasture, grass bir or fodder reserve; (c) for burial ground and cremation ground; (d) for gaothan; (e) for encamping ground; for threshing floor; (f) (g)for bazaar; (h) for skinning ground; for manure pits; (i) for public purposes such as schools, play grounds, (j) parks road, lanes, drains and the like; and (k) for any other purposes which may be prescribed for the exercise of right of Nistar. —»-1 to the rules made under this Code, (2) Lands set apart specially for any purpose mentioned in sub-section (1),shall not otherwise be diverted without the sanction of the Collector. (3) Subject collector may divert such unoccupied land, which is set apart for the purposes mentioned in clause (b) of sub-section (1)Subject to secure minimum two percent of the agriculture land of that village for the said purposes in to abadi or for agricultural purposes. Sub-sec. (3) —as in force in Chhattisgarh State only : [(3) Subject to the rules made under this Code, collector may divert such unoccupied land, which is set apart for the purposes mentioned in clause (b) of sub-section (1) Subject to secure minimum two percent of the agriculture land of that village for the said purposes in to abadi or for agricultural purposes on the basis of a resolution by the Gram Sabha to this effect]" As per Section 237 of the Code, the Collector may set apart unoccupied land. The service land in possession of the Kotwar cannot be said to be unoccupied land, which can be set apart for the purposes mentioned in the section. The allotment of service land cannot be cancelled without the proof of contravention of conditions •vfy ^'^ 7 /^ :-y fL?fw^;' ^/ '^N;:^^ ^ mentioned in Section 183 of the Code. The appellant has further failed to produce any order by which the service land has been taken back from the village Kotwar, as normally the sen/ice land is not available for allotment for the purposes as mentioned in Section 237oftheCode.

6. In the light of above, it cannot be said that plaintiff has not ^- proved three essential ingredients for grant of temporary injunction, i.e., prima facie case, balance of convenience and irreparable loss in his favour. For the purpose of grant of temporary injunction, plaintiff is not required to make out a clear legal title but has only to satisfy the Court that he has a fair question to raise as to the existence of the legal right claimed by him in the suit (please see Shankarlal Rathore v. State ofM.P. and others, 1978 JLJ 51)

7. Considering the above aspect of the matter, in my opinion, the ratio of law laid down in the case of Maria Margarida Sequeria Fernades v. Erasmo Jack De Sequeria, (2012) 5 SCC 370 cited and relied upon by appellant's counsel Shri B.P.Sharma is of no help to him. Therefore, the appeal has no merit and is liable to be and is hereby dismissed. However, in order to balance equities between the parties, respondent No.1 is also restrained from alienating and changing the nature of the suit land in any manner till decision of the suit and the trial Court is directed to decide the suit expeditiously as early as possible, preferably within a period of one year from the date of receipt of a copy of this order. It is also made clear that this Court has not expressed any opinion on the merits of the matter and the trial Court shall proceed to decide the matter in accordancewith law on its own merits without being influenced by any of observations made herein above.

8. No order as to costs. .Sd/- N.K. Agarwal Judge