IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 149 of 2010 Date of decision: 09.07.2010 ____________________________________________________________ Saina Devi. .....Petitioner. Versus The State of H.P. and others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ____________________________________________________________ For the petitioner: Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate. For the respondents: Mr. Anil Jawal, Deputy Advocate General for respondents No. 1 and 2. Mr. Y.P. Sood, Advocate for respondent No. 3. Mr. K.D. Sood, Advocate for respondent No. 4. V.K. Sharma, J (Oral). By filing the present petition under Article 227 of the Constitution of India, the petitioner herein, who is plaintiff before the learned trial court, has laid challenge against the order dated 05.04.2010, passed by the learned Additional District Judge, Shimla, whereby the appeal filed by her against an order dated 25.02.2010, dismissing her application under Order 39 Rules 1 & 2 CPC for grant of ad interim injunction, pending suit, was dismissed. 2. To be precise, the facts giving rise to the controversy 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... between the parties are that the plaintiff alongwith others is a co- owner in the land bearing khasra No. 627, measuring 432.82 square meters. Her share therein is to the extent of 1/36. It is alleged by the plaintiff that during the recent settlement operations, which admittedly were undertaken somewhere in the year 2000, a part of the land comprised of khasra No. 627, as aforesaid, to the extent of 134 square meters, has been wrongly included in the adjoining khasra No. 518, belonging to the State of H.P. According to her, when she came to know about it, she applied to the Sub Divisional Collector, Rohru, for grant of demarcation of khasra No. 627 vis-a-vis the old and new records. It is further averred that on that application Naib Tehsildar, Jubbal was deputed to ascertain the factual position on the spot and to submit his report. As a result, the said revenue officer carried out demarcation and submitted report to the effect that land measuring 134 square meters, being part of khasra No. 627, has been wrongly included and shown as a part of the adjoining khasra No. 518. On the strength of the demarcation report, the plaintiff filed an application for correction of revenue entries before the aforesaid Sub Divisional Collector, Rohru, which is pending adjudication. 3. In the meantime, Nagar Panchayat, Jubbal, which is represented by its Secretary (respondent No. 4), started construction of a Car Parking in the land comprised of khasra No. 518 by engaging respondent No. 5 as a contractor. It is stated that such construction was initiated after taking approval of the State ...3... Government. It was at this juncture that the plaintiff filed a suit for grant of a decree of perpetual prohibitory injunction and in the alternative for mandatory injunction to the effect that the respondents herein, who have been joined in the aforesaid suit as defendants, may be permanently restrained from raising any construction in the aforesaid land measuring 134 square meters, denoted by khasra No. 518/1 and in case they succeed to do so, the construction may be ordered to be demolished. By way of interim relief, a prayer was made that pending suit an ad interim injunction restraining the defendants from undertaking any construction in the suit land may be passed. 4. However, no ad interim injunction, either ex parte or after notice, was granted by the learned trial court in favour of the plaintiff. Being aggrieved, the plaintiff took the matter in appeal before the learned Additional District Judge, Shimla, but again without any success, as already noticed. 5. Against the foregoing background, the present petition has been filed on the averments that in view of the aforesaid report of the Niab Tehsildar, Jubbal, it is prima facie made out that a part of the land bearing khasra No. 627 has been wrongly included in khasra No. 518 belonging to the State of H.P. and as such the plaintiff has a prima facie good case and balance of convenience in her favour and in case ad interim injunction, pending suit, prayed by her is not granted, she will suffer irreparable loss and injury which can not otherwise be compensated in terms of money. ...4... 6. Conversely, it is submitted on behalf of the defendants that the controversy raised by the plaintiff is squarely covered by a judgment rendered by an Hon'ble Single Judge of this Court dated 01.07.2010 in CMPMO No. 145 of 2010, titled Parma Nand vs. State of H.P. and others. Though the learned counsel for the plaintiff has vehemently contested this submission by saying that facts of the two cases are entirely different and it cannot be said that the present case is covered under the aforesaid judgment dated 01.07.2010. 7. I have heard the learned counsel/Deputy Advocate General for the parties and perused the record. 8. It is not disputed that Shri Parma Nand, the petitioner in CMPMO No. 145 of 2010, is also a co-owner alongwith the petitioner herein, Smt. Saina Devi, in the aforesaid land bearing khasra No. 627. It is also not in dispute that the said Shri Parma Nand had filed an application for correction of revenue entries on almost identical averments that a part of khasra No. 627 has been wrongly included in khasra No. 518 during the recent settlement operations and when this mistake was detected, he filed an application for correction of revenue entries before the Settlement Collector, Shimla. In that application also, a revenue officer was deputed to ascertain the factual position on the spot and he also reported that in fact some land from khasra No. 627 stood included in khasra No. 518 during the recent settlement. However, the fact remains that in those proceedings, the Settlement Collector ultimately held against the said Shri Parma Nand. Being ...5... aggrieved he took the matter in appeal before the Divisional Commissioner, but again unsuccessfully. Now, that matter is said to be pending adjudication before the Financial Commissioner. In that matter as well Shri Parma Nand filed a similar suit before the learned trial court, in which he also prayed for grant of ad interim injunction which was not granted. Again the matter was taken by way of an appeal to the court of the learned Additional District Judge, Shimla, but without any success. It was thereafter that the aforesaid CMPMO No. 145 of 2010 was filed by him before this Court, which has also been dismissed vide the aforesaid judgment dated 01.07.2010, relevant observations and operative part whereof, contained in paras 7 to 9 is extracted below: “7. I have heard the learned counsel for the parties. It is the admitted case of the parties that as of today the State of H.P. has been shown owner in possession of khasra Nos. 518, 628, 634 in the revenue record. The learned counsel for the petitioner has submitted that the revenue record showing the State of H.P. owner in possession of khasra Nos. 518, 628, 634 is wrong and it has been demonstrated by the report of Naib Tehsildar dated 27.6.2002 which has been approved by the Tehsildar on 27.6.2003. The learned Civil Judge has observed in the order dated 17.11.2009 that Naib Tehsildar has not carried out the demarcation as per the instructions. Moreover, Naib Tehsildar was directed by the Settlement Collector during the correction proceedings to report and ultimately the Settlement Collector has rejected the application of the petitioner for correction of entries. In these circumstances, the report of the Naib Tehsildar does not survive independently and it has merged in the order of Settlement Collector. 8. The order of Settlement Collector has been affirmed by the Divisional Commissioner and the matter is pending before the Financial Commissioner. It has not been shown on behalf of the petitioner how the petitioner is owner in possession of land in dispute ...6.. more particularly when the report of Naib Tehsildar dated 27.6.2002 has not been accepted by the competent authorities. The petitioner has failed to establish prima facie case in his favour. In so far as the balance of convenience and irreparable loss are concerned, those factors are also in favour of the respondents, inasmuch as, prima facie the State is owner of the land in dispute, the respondent No. 3 is constructing a car parking on the portion of the land in dispute with the consent of the State and has engaged respondent No. 4 as contractor. It has been submitted that sufficient amount has already been spent by the contractor for raising construction. In these circumstances, prima facie case, balance of convenience and irreparable loss are in favour of the respondents. 9. In addition, on behalf of the petitioner it has not been established that impugned order is without jurisdiction. The view taken by two courts below emerges from the material on record. The petitioner by way of prayer (b) has already prayed for dismantling of structure raised during pendency of suit. The courts below have the jurisdiction to pass the impugned orders. The scope of interference under Art. 227 of Constitution of India is very limited. In the facts and circumstances of the case, the petitioner has failed to make out a case for interference. There is no merit in the petition.” 9. In view of the above judgment rendered by a coordinate Bench of this Court, presided over by Hon'ble Mr. Justice Kuldip Singh, J. In a matter almost identical to the present one, I have no hesitation to say that the plaintiff cannot be said to have a prima facie good case and balance of convenience in her favour and rather such parameters can very well be said to be in favour of the other side. It is because the land of khasra No. 518 is recorded in the ownership of the State of H.P. The application for correction of revenue entries filed by the plaintiff is still under adjudication and as such the report submitted by the revenue ...7... officer is of no help to her, as a similar report submitted by the revenue officer in the aforesaid matter of Shri Parma Nand with regard to the same land has not found favour with the concerned authorities right from the Settlement Collector up to the Divisional Commissioner. In such circumstances, the presumption of truth attached to the revenue entries in favour of the State of H.P., cannot be said to have been rebutted by any stretch of imagination. 10. For the reasons stated hereinabove, I do not find any merit in the present petition, which is accordingly dismissed. In view of dismissal of the main petition, pending CMPs, if any, shall also stand disposed of as infructuous. (V.K. Sharma) Judge 9th July, 2010 (virender)