Mohd. Sharief v. Allah Rakha

Judgment

1. Feeling aggrieved and dissatisfied with the order dated

31.10.2023 (for short „impugned order‟) passed by the Court of learned Additional District Judge, Samba (for short „Appellate Court‟), by which the Appellate Court has set aside the order dated 31.07.2023 passed by the learned Munsiff, Samba (for short „trial Court‟) and restrained the petitioners from interfering or raising any construction or obstruction over the suit land till final disposal of the main suit.

2. Briefly stating facts of the case are

plaintiff/respondent herein filed a civil suit before the trial Court for permanent prohibitory injunction restraining the petitioners or their agents from interfering in the ownership and possession of the respondent with respect to 2 CM(M) 212 of 2023 total land measuring 4 Kanals bearing Khasra No. 860 (1 Kanal 15 Marlas) Khasra No. 861 (I Kanal l5 Marlas) and Khasra No.861/ l (l0 Marlas) situated at Meen Sarkar, Tehsil Bari Brahmana District Samba. The trial Court vide order dated 02.09.2021 while issuing the notice to the defendants, passed an ex-parte ad-interim order in the application filed under Order 39 Rule 1 & 2 CPC temporarily restraining the defendants-petitioners herein from interfering in the ownership and possession of the plaintiff-respondent with respect to the suit land. Pursuant to the notice issued by the trial Court, the petitioners- defendants filed their written statement stating therein that petitioners are in possession of the land mentioned in the suit and that ownership right of the plaintiff-respondent herein has extinguished by the efflux of more than 12 years and the same are confirmed upon the defendants - petitioners by the principle of adverse possession. Thereafter, while considering the application filed under Order 39 Rule 1, 2 and 3 CPC, the trial Court vide order dated

31.07.2023 modified the earlier order dated 02.09.2021 and directed the parties to maintain status quo with respect to subject matter of the suit till final disposal of the main suit and counter claim.

3. The plaintiff-respondent against the aforesaid order dated

31.07.2023 filed an appeal under Order 43 Rule 1(r) of CPC before the Appellate Court and the Appellate Court vide impugned order dated

31.10.2023 disposed of the appeal by observing that “once the trial Court came to a conclusion that prima facie case lies in favour of plaintiff-respondent and balance of convenience also lies in his favour and relied upon irreparable loss, is not justified, as such, order passed by the trial Court was set aside.” It 3 CM(M) 212 of 2023 is this order of the Appellate Court which is under challenge before this Court in these proceedings.

4. The petitioners in the instant petition filed under Article 227 of the Constitution of India seek quashing of the order dated 31.10.2023, precisely on the following grounds:- (i) That the order impugned is against the law, facts and all canons of natural justice. This being so, the order impugned is required to be set aside; (ii) That the Appellate Court has gone beyond the relief sought by the respondent in his suit and even has passed a direction to the petitioners restraining them from raising any construction or obstruction over the suit land, which relief was never sought by the respondent in his suit. (iii) That the Appellate Court vide his order impugned dated 3l.10.2023 has virtually decreed respondent in the application under Order 39 Rule I & 2 CPC without the trial of the suit by the trial Court; the suit of (iv) That the Appellate Court failed to note that the respondent had filed an application to the Tehsildar Bari Brahmana, Samba for demarcation of land who forwarded the same to the concerned Patwari for the same. The concerned Patwari submitted a report dated 28.06.2021 wherein he certified the possession of the petitioners on the suit land; (v) That the respondent has deliberately not produced the report of the revenue agency along with his suit to conceal that it is not the respondent, but the petitioners who are in possession of the suit land; (vi) That the order impugned amounts to rejection of the counter claim of the petitioners without the trial of the suit. The Appellate Court has brushed aside the report of the revenue agency i.e. concerned Patwari dated 28.06.202l, which is confirmed by the Girdawar Circle and Naib Tehsildar that the petitioners are in physical cultivating possession of land measuring 3 Kanals l2 Marlas bearing Khasra No.860, 861 & 861/l min 4 CM(M) 212 of 2023 situated at village Meen Sarkar, Tehsil Bari Brahmana District Samba; (vii) That the plea of "Adverse Possession" is a blended question of fact and law. Once a plea of Adverse Possession is taken by the petitioners in their counter claim, it was enjoined upon the court below to direct the parties to maintain status-quo on the spot and till the final disposal of the suit and allow the parties to prove their contention/plea of Adverse Possession by leading evidence. By setting aside the order of trial Court of status-quo, the Appellate Court has virtually ousted the petitioners from the suit land and has dismissed their plea of Adverse Possession without trial; (viii) That the petitioners have raised three structures in the suit land i.e. one Kacha Kulla (structure having straw roof) wherein the petitioners were running poultry farm, one cow/ buffalos shed which was constructed 40 years back by Rahim Baksh, the grandfather of the petitioners No. l and 2 and on residential house. The above mentioned structures which are existing on spot on the suit land are enough to show that the suit land was and is in interruipted continuous physical possession of the petitioners and not in possession of the respondent;

5. Learned counsel for the petitioners submits that respondent is not in possession of the land in question. It is stated that the plaintiff/ respondent himself had moved an application before the Tehsildar, Bari Brahmana for demarcation of land bearing Khasra Nos. 860, 861 and 861/l measuring 4 Kanals on 08.02.2021 and after demarcation and on spot inspection it was found that for last more than 40-50 years petitioners are in possession of the said land.

6. The power under Article 227 is one of judicial superintendence that cannot be used to upset conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no court could ever have reached them. Way back in 1954, a Constitution Bench 5 CM(M) 212 of 2023 of the Supreme Court, in Waryam Singh v. Amarnath, AIR 1954 SC 215, has pointed out that the power of superintendence conferred by Article 227 should be exercised "most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority andnot for correcting mere errors. The Supreme Court in Dr. R. Venkatchalam and others etc. v. Dy. Transport Commissioner and others etc., AIR 1977 SC 842, has said that the Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of the ideological structure or the scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under disguise of interpretation. While interpreting a provision the Court only interprets law and cannot legislate it. If a provision of law is misused and subjected to abuse of process of law, it is for legislature to amend, modify or repeal it, if deemed necessary.

7. Article 227 can be invoked by the High Court suo moto as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in administration in larger public interest whereas Article 226 is meant for protection of individual grievances. It has been held by the Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329, that “the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline”. The 6 CM(M) 212 of 2023 object of superintendence under Article 227, both administrative and judicial, is to maintain the efficiency, smooth and orderly functioning of the entire machinery of the justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of the justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. The Supreme Court in Managing Director (MIG) Hindustan Aeronautics Ltd. BalanagarHydrabad and another v. Ajit Prasad Tarway Manager (Purchase & Store) Hindustan Aeronautics Ltd. BalanagarHydrabad, AIR 1973 SC 76; and Kokkanda B. Poondacha&Ors. v. K. D. Ganapathi & another, AIR 2011 SC 1353, after recapitulating what has been observed in Shalini Shyam Shetty’s case (supra) qua Article 227, held that “learned Single Judge of the High Court totally ignored the principles and parameters laid down” by the Supreme Court “for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason.” The jurisdiction under Article 227 must be sparingly exercised and may be exercised to correct the errors of the jurisdiction and the like, but not to upset the findings of the fact, which falls in the domain of an appellate court only. Same is true about the present case. The petition on hand is, from the above discussion, an appeal under the attire of petition under Article 227 of the Constitution of India. Reference in this regard is made to Nibaran v. Mahendra AIR 1963 SC 1895; D.N.Banerjee v. Mukherjee AIR 1953; SC 7 CM(M) 212 of 2023 58; NizzarRawther v. Varghese Mathew AIR 1992 Ker 312; and Khimji Vidhu v. Premier High School AIR 2000 SC 3495.

8. It is apt to mention here that the power under Article 227 is broader than that conferred on the High Court by Article 226. For example, through its power to issue certiorari under Article 226, a High Court can annul the decision of a tribunal while under Article 227 it can do that and do something more, it can issue further directions in the matter. But under Article 227, the High Court does not sit as a Court of appeal inasmuch as it is also not permissible to a High Court on a petition filed under Article 227 to review or reweigh the evidence upon which the inferior Court or tribunal purports to have passed the order or to correct errors of law in the decision. The power of superintendence conferred by Article 227 is supervisory and not appellate jurisdiction.

9. As per settled proposition of law laid down by the Supreme Court in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad (supra) Mohd. Yunus (supra) and Kokkanda B. Poondacha (supra) that if any order is passed by subordinate court under its vested discretionary jurisdiction, then the same could not be interfered with by the High Court either under revisional jurisdiction under Section 115 of CPC or under supervisory jurisdiction vested under Article 227 of the Constitution of India. If an order is amenable to challenge before appellate authority, writ petition is not proper remedy without first filing appeal and getting the same decided by the appellate court on its merit in accordance with law. In other words, the High Court should decline to entertain writ petition under Article 227 on the ground of an alternative remedy of appeal. While saying this, the 8 CM(M) 212 of 2023 Supreme Court in Hameed Kunju v. Nazim (2017) 8 SCC 611, has held that there was no reason muchless justifiable one for the High Court to have entertained writ petition under Article 227 against the order passed by Trial Court.

10. Perusal of the impugned order tends to show that the petitioners have not produced any document before the Appellate Court as per Section 31 of the Land Revenue Act to prove their possession over the suit land, whereas the plaintiff/respondent has annexed revenue record documents showing him in cultivating possession. Thus, the Appellate Court has rightly observed that the material on record, prima facie, shows that the plaintiff-respondent herein happens to be the owner in possession of the suit property. So far as the order passed by the learned trial Court, whereby parties have been directed to maintain status quo, is concerned, the same is clearly not in accordance with law, inasmuch as the learned trial Court has, without recording a tentative opinion as to the possession of the suit property, directed the parties to maintain status quo, that too after holding that there is a prima facie case in favour of the plaintiff-respondent and that balance of convenience lies in his favour.

11. Thus, it is clear that while passing an interim order directing the parties to maintain status quo, the trial Courts should in no uncertain terms record a tentative finding as to which of the parties is in possession of the disputed property. In the instant case, the learned trial Court has miserably failed to render an opinion on this aspect of the matter despite there being over-whelming material on record on the basis of which the trial Court could 9 CM(M) 212 of 2023 have come to a correct conclusion in this regard. The Appellate Court has, therefore, rightly modified the order of the learned trial court.

12. For the foregoing reasons, I do not find any error, much less a gross error, having been committed by the learned Appellate Court while passing the impugned order. The petition lacks merit and is, accordingly, dismissed. Jammu 16.12.2023 Bir (VINOD CHATTERJI KOUL) JUDGE Whether the order is reportable: Yes/No