CAV Order

26/03/2021

1. This petition under Article 227 of the Constitution of India has been brought challenging the legality and propriety of the order dated 4.3.2020 passed by the learned Additional District Judge, Patthalgaon, District-Jashpur in Misc. Civil Appeal No.04/2020 thereby allowing the appeal of respondent No.2 and granting temporary injunction in his favor under Order 39 Rule 1 & 2 CPC.

2. It is submitted by the counsel for petitioner that the disputed property is khasra No.413 area 0.357 hectares, situated in village-Palidih on which respondent No.2 is claiming his possession, whereas the fact is this that, the petitioner is in possession of this property. The Kistbandi khatoni (AnnexureP-6) shows the petitioner as recorded owner of the suit property and khasra Panchsala of the year 2017-18 also shows the petitioner as the person in possession of the suit property. The property was demarcated and the demarcation report (Annexure-P7) dated 24.9.2017 mentions that on the area of 0.178 hectares of khasra No.413 the respondent No.2 is in possession, whereas on the area of 0.178 hectares of the same khasra number there is possession of respondent No.3. There is also a report of gram panchayat (Ex.P4)

that the petitioner is in possession of the part of the suit property. Reliance has been placed on the judgment dated 21.10.2016 passed by this High Court in WP227 No.492/15, parties being Sanjeet Singh v. Kamlesh Singh and another.

3. It is submitted, that the respondent No.2 has filed civil suit praying for relief of declaration of title and permanent injunction. Along with civil suit, an application under Order 39 Rule 1 & 2 CPC for grant of temporary injunction has also been filed, which was rejected by the trial Court on 23.12.2019. The learned appellate Court while deciding the appeal has erroneously held that the records of 1931-32 mention names of the ancestors of the plaintiff i.e. respondent No.2, and therefore without any inquiry and trial it has been held that the petitioner/defendant got his name entered into revenue records in a fraudulent manner and the mutation is illegal. On this basis, it was held that the petitioner/defendant No.2 was in illegal possession and on this basis it was held that the respondent No.2 has prima facie case in his favor which is the basis of impugned order. The impugned order is totally unsustainable. It is prayed that this petition be allowed and impugned order be quashed.

4. Learned counsel for respondent No.2 opposes the submissions and submits that the application under Order 39 Rule 1 & 2 CPC contains a family tree, according to which, it is only respondent No.2 who is successor of Banmali, who is mentioned as recorded owner of the suit property in the revenue records in 1931-32. The finding of the learned appellate Court is totally correct and sustainable. It is mentioned in the impugned order that khasra No.689 was the old survey number which has been re-numbered as khasra No.430. The petitioner has not produced any previous revenue entries showing entry regarding the suit property in his favor, therefore, it is clear cut case of fraudulent mutation.

Reliance has been placed on the judgment of Supreme Court in the case of Sameer Suresh Gupta v. Rahul Kumar Agrawal, reported n (2013) 9 SCC 374, in which, the learned Supreme Court has made a mention of the criteria in which the High Court can exercise jurisdiction under Article 227 of Constitution of India. Hence,the learned appellate Court has acted within its own jurisdiction in which this Court cannot interfere under Article 227 Constitution of India. Therefore, the petition is liable to be dismissed.

5. Learned counsel for petitioner submits in reply that there is no submission to rebut the revenue entries in Ex.P-4 the report of Gram Panchayat and the revenue entries in Ex.P/6 & P/7, hence, there is no prima facie proof of possession of the respondent No.2 and thus the respondent No.2/plaintiff had no prima facie case and