IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19503 of 2010 1. Deo Narain Mahto S/O Late Badri Mahto R/O Mohalla- Shahganj, P.S.- Sultanganj, Distt.- Patna Versus 1. Radha Kant Lal S/O Late Budhan Mahto R/O Mohalla- Shivpuri Tikiyatoli, P.S.- Sultanganj, P.O.- Mahendru, Distt.- Patna 2. Om Prakash Mahto S/O Late Budhan Mahto R/O Mohalla- Shivpuri Tikiyatoli, P.S.- Sultanganj, P.O.- Mahendru, Distt.- Patna 3. Vijay Kumar S/O Late Budhan Mahto R/O Mohalla- Shivpuri Tikiyatoli, P.S.- Sultanganj, P.O.- Mahendru, Distt.- Patna 4. Bhola Prashad Thakur R/O Vill.- Mekash, P.O.- Aklashpur, P.S.- Bhabua, Distt.- Rohtas (Kaimur), At Present Mohalla- Rampur, P.O.- Rampur, P.S.- Sultanganj, Patna City --------------------- 2 23.09.2011 Heard Mr. Sunil Kumar Singh, learned counsel for the petitioner. The petitioner is aggrieved by the order dated 31.07.2010 passed by the Additional District and Sessions Judge, Patna City in Misc. Appeal No. 46 of 2008/ 15 of 2010 whereby the appeal filed by the petitioner under Order 43 Rule 1 (r) of the Code of Civil Procedure (hereinafter referred to as the ‘Code’), has been rejected and the order dated 25.10.2008 passed by Civil Judge-2nd Senior Division, Patna City in Title Suit No. 138 of 2007 has been confirmed. Brief facts of the matter is that the suit in question was filed by the respondent Nos. 1 to 3 for declaration of title and confirmation of possession over the suit property. It was the claim of the plaintiff that the property in question pertaining to Municipal Survey Plot No. 1718 having an area of 155 kari, Ward No. 15(old) New 21/36/47 situated in Mauza Saidpur, P.S. Sultanganj, District 2 Patna devolved on the plaintiffs by virtue of partition having taken place. It was further their case that when they went to obtain the rent receipt for the said plot, they became aware that the defendant- petitioner in collusion with the defendant No.2nd set-the respondent No.2 herein, had got issued rent receipts in their names. The defendant No.1-petitioner appeared in the suit and also filed written statement raising a counter claim under the provisions of Order 8 Rule 6(A) of the Code. It was the claim of the defendant-petitioner that the suit land in question was in the name of Jhapsi Gope and Jhari Gope sons of late Janki Bhagat. It was further the case of the defendant-petitioner that his father late Sita Ram Thakur had purchased 23 decimals of land of Survey Plot No.508 of which the Municipal Survey No. 1718. It is contended that the said purchase was made upon payment of Rs. 51/- for which receipts was also issued on 11.06.1919. It is a claim of the defendant-petitioner that soon after the transaction aforesaid, the vendee i.e. father and uncle of the petitioner came in possession of the suit land. It is stated that during the Patna Municipal Corporation Survey, the plot no. was numbered as M.S. Plot No.1718 having an area of 155 kari which was in exclusive possession of the ancestors of the petitioner and upon partition in the year 1941 it was allowed in the share of the father of the petitioner and after his death has passed over to the present petitioner. In the aforesaid circumstances, a petition under Order 3 39 Rule 1 and 2 was filed not only on behalf of the plaintiff, as certain constructions were being carried out on the disputed land by the respondent No.4 but also by the defendant-petitioner No.1 before the trial Court and which was rejected by order dated 25.10.2008 passed by the Civil Judge-2nd Senior Division, Patna City in Title Suit No. 138 of 2007. The defendant-petitioner being aggrieved by the said order preferred a Misc. appeal under Order 43 Rule 1(r) of the Code giving rise to Misc. Appeal No. 46 of 2008/15 of 2010 and which has since been rejected by the impugned order dated 31.07.2010 giving rise to the present writ petition. The sole contention of the petitioner is that the Plot in question devolved on the ancestor of the petitioner by virtue of a purchase which took place as back as in the year 1919 and following a family partition, the same has devolved on the petitioner. It is contended that a survey was conducted under the provisions of Order 39 Rule 7 and on inspection carried out by the Advocate Commissioner the report whereof is placed at Annexure-2 of the writ petition, the Advocate Commissioner has confirmed about the constructions being carried out on the disputed plot by the respondent no. 4. It is contended that the file report enclosed with the Advocate Commissioner’s report dated 01.05.2010 is by itself sufficient to support the contention of the petitioner. Learned counsel submits that in view of the report of the Advocate Commissioner and the receipts demonstrating that the suit 4 property had devolved on the petitioner’s family and evidences being filed in respect thereof, the order impugned having been passed in disregard of the supportive evidence and the Advocate Commissioner’s report is not sustainable. Having heard learned counsel for the petitioner and having considered the order passed by the learned trial Court as well as the first appellate court, it is manifest that a conclusive finding of fact has been given by the learned courts below as regarding the possession of the respondent No.4 over the disputed property. A perusal of the order impugned shows that the learned Courts below has passed the order upon consideration of the evidences led by the plaintiff, the defendant-petitioner and the respondent No.4 and whereafter the Court has come to a conclusive finding that the possession over the suit property is that of the respondent No.4. Taking into consideration the conclusive finding of fact in favour of Respondent No 4, given by the Courts below and the fact that no jurisdictional error can be found in the order(s) under challenge, this Court would not interfere with the orders passed by the learned Courts below upon appreciation of facts. Law is well settled that orders refusing injunction by the trial Court and affirmed by the appellate Court should not be interfered with in supervisionary jurisdiction unless there is any error in jurisdiction or the same has been passed with the material irregularities. Reference in this regard is made to the judgment of the Supreme Court 5 rendered in the case of Dipali Dey (Baxi) versus Mira Das reported in (2009) 11 SCC 495. For the reasons aforesaid, the writ petition is dismissed. Bibhash (Jyoti Saran, J.)