1982 Supreme(MP) 605

IN THE HIGH COURT OF MADHYA PRADESH
R. K. VIJAYWARGIYA, J.
Makhansingh - Appellant
Versus
Ladbai - Respondent
C. R. No. 256 of 1980 (I)
Decided on : 30-09-1982

Headnote:(1) Civil Procedure Code, 1908 – O.39, R. 1 and 2 – plaintiff not in possession on date of suit – temporary injunction rightly refused.

       (2) Civil Procedure Code, 1908 – S. 115 – finding of fact – cannot he interfered in revision.

       (3) Civil Procedure Code, 1908 – O. 41, R. 27 – additional evidence in shape of public documents – obtained after order of trial Court – can be entertained by appellate Court.

        Short Note

       1. The plaintiff applicant alleged that he purchased the suit land on 16 – 5 – 1977 from the non – applicant Ladbai. The sale deed was executed by her husband the non – applicant No.2, Chandersingh who held a power of attorney from her. According to the plaintiff he was put in possession of the suit land but was threatened to be dispossessed on 21 – 6 – 77. The plaintiff therefore filed the present suit for permanent injunction and also prayed for temporary injunction restraining the defendant from interference with his possession during the pandency of the suit. The trial Court granted temporary injunction as prayed for by the plaintiff. On appeal the appellate Court has reversed the order passed by the trial Court and dismissed the application for temporary injunction filed by the applicant. Aggrieved by the order of the Court below the plaintiff has submitted this revision.

       2. Held : The appellate Court on appreciation of the materials placed on record held that it was not proved that the plaintiff was put in possession at the time of the sale and further it is also not proved that he was in possession of the land at the time of the filing of the suit. This is a finding of fact based on appreciation of evidence

       3. The learned counsel for the applicant contended that the appellate Court committed an error in allowing the non – applicant to produce additional evidence at the stage of appeal. The additional evidence allowed by the appellate Court is a certified copy of the Khasra of the year 1977 which according to the non – applicant was obtained after passing of the order by the trial Court. The appellate Court gave an opportunity to the applicant to rebut the said evidence. The learned counsel for the applicant admitted before the appellate Court that the plaintiff was not in a position to rebut the said evidence. In the circumstances it cannot be said that in taking the said document into consideration the appellate Court committed any illegality. The said document is a certified copy of public document. The appellate Court on consideration of the material placed on record came to the conclusion that the plaintiff failed to prove that he was in possession of the suit land at the time of the filing of the suit. It cannot be said that the appellate Court has acted illegally or with material irregularity in exercise of jurisdiction vested in it by law in recording the said finding. Even if the finding recorded by the appellate Court is erroneous that cannot be a ground for interference in a revision. I, therefore, see no reason to interfere with the order passed by the appellate Court.

       Revision dismissed.