f: \^ IN THB HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL NO. f^ / ^2006 SjRglr Bgnch MISC^APPBAL UNDER SECTION 104 R/WORBER43^RULE 1 OF CIVIL PROCEDURE CODB, 1980. APPEAL VALUED AT Rs. 2,35.800/- A APPELLANT DEF. No. 17 RBSPONDENTS ^•' ^' ^ ^ G^r :- , Pankaj Kumar Mittal S/o Rishi Kumar, aged about 23 years, by caste- Agrawal, Resident of Ward No. -15 Gharghoda, Tahsil Gharghoda, District Raigarh [C.G.]. VERSUS .- ^l] Chandan Sai S/o Nand Lal, aged 56 years, Occupation Agriculturist. ^_2] Chhattar Sai S/o Nand Lal, aged 40 years, Occupation Agriculturist. ^ t—3]BalamSai S/o Nand Lal, aged 35 ^ years, Occupation- Agriculturist. <^ Ut] Mst Phulmet widow of Nand Lal, aged 80 years, Occupation- Agi-iculturist. ^_5] Ashok Kumar S/o Bakhtar Sai, aged 25 years, Occupation- Agriculturist. ^ 6] Ghuruwa S/o Sukh Das, aged 26 ^ years, occupation-Agricylturist. ^_7] Munaku S/o Sukh Das, ^ aged 24 ^ years, Occupation- Agrtculturist. 5 ^ t.8] JodhiDas S/o BhikhamDas,aged 54 years, Occupation- Agriculturist. Mehattar S/o Sukrit Das, aged 45 years, Occupatlon- Agriculturist. ^—10]Yashoda Bai Widow of Kanchan Das, aged about 85 years, Occupation- Agriculturi^t. s ^ll] Pyare Lal S/o Kanchan Das, aged 45 years, Occupation"- Service, ^ ^—1:2]Jagmohan S/o Kanchan Das, aged 45 years, Occupation- Service. > > (> 4-l3] Manmohan aged 40 ' Labourer. S/o Kaiichan Das, years, Qccupation- ~\. s ^-14] Saheb Das S/oKanchan Das, aged ^ about 35 years, Occupation- Labourer. ^_ 15] Chhote Lal S/o Kanchan Das, ^ aged 33 years, Occupation- Labourer. ^-16] Shyam Bai D/o Bodhan Das, aged ^ 29 years, occupation- House hold. All are by caste Panika, No. 01 to 09 R/o village Bade- Gumda, Talisil Gharghoda, Dlstrict Raigarh [C.G.], No. 10 to 16 are resident of Shankar Nagar Dhongardeepa, Raigarh, Tahsil and District Ralgarh[C.G.]. PLAINTIFFS 1 TO 16 RESPECTIVELY ^. 17] Ghamandf :Das S/o Salik Ram, ^ aged 7 years, Occupation- Agriculturist. ^ 18] Dev Nath S/o Shital Das, aged 35 .< years, Occupation- Agriculturist. 19] Neer Bai widow ofShifal Das, aged 60 years^ Occupation- Agriculturist. 20] Santra Bai D/o Shital Das, aged 30 years, Occupation Agriculturist. ^ 21] Bhupdev Sas S/o Salik Ram, aged , about 60 years, Occupation- Agriculturist. <^ 22] Leelawati widow of Ghain Das, ^ aged 63 yearis, Occupation- Agi-iculturist. 23] Beena Kumar S/o Chain Das, aged 30 years, Occupation Agriculturist. -^ 24] Uttam Kumar S/o^Chain Das, aged 32 years, Occupation Agriculturist. ^ 25] Dashrath S/o Heera Das, aged 65 & years, Occupation- Agriculturist; s .26] Manbahal S/o Tilak Das, aged 60 yegirs, Occupation- Agriculturist. ^^27] Santosh S/o Chamra Das, aged 20 years, Occupatlon- Agriculturist. S 28] Narendra S/o Chamra Das, aged ^ 18 years, Occupation Agriculturist. 29] Kumari Jamuna D/o Chamra Das, aged 17 years, ^ 30] Kumar Lalita D?o Chamra Das, aged 15 years, ^ •31] Nagu S/o Chamra Das, aged 10 years, ^Noo 12 to 15 through mother KaUshilya Widow of Chamra Das. ^ 32] KaUshilya @ Gharghodhin widow of Chamra Das, aged 42 years. 33] State of Chhattisgarh through- X Colleetor, Raigarh [C.G.]. l^ ?^- ^ No. ^^ to ^, all are by caste- PanikaTR/o wllage- Bade Gumda, Tahsil Gharghoda, District Raigarh [C.G.]. ^^ vsf^ DET^NDANTS l TO 16 AND l^ RESPECTIVELY L.. HIGH COURT OF CHHATTISGARH : BILASPUR M. A.No. 989 of 2006 AppeUaat/ Paakaj Kuiuai' Mittal Def.No. 17 Versus Respondents Charidan Sai & others MISC. APPEAL U/S 104 R/W ORDER 43 RULE 1 OF C.P.C. SB: HonT3le Shri Prashaat Kuiaar Mishra, J Shri S. K. Tiwari, Advocate for the appellaat. Shri Viaod Tekam, Paael Lawyer for fhe respondent No-33/State, None for fhe otlier rcspoxidents. ORDBR (Orall ( passed on fhis 10th day of Septeniber, 2010 ) Per Prashaat Kumar Mishra»J. The appeUant/defendant No.17 in the sidt, is aggrieved by fhe order dated 12.7.2006, passed by fhe 1st Additional Distdct Judge, Raigarh (trial Court), aUowiag the plaiatiffsVrespondents No. 1 to 16's application under Order 39 Rule 1 and 2 of the Code of Civil Procedure aad graatmg temporary iajunction ia fheir favour, restraiaiag fhe present appellaat from mteriermg ia the possession of the plamtiffs' on fhe suit laad. Plaintiffs' case ia short is ffciat the suit laad belongs to aacestrals of the plauitiffs and ia tlie year 1961-62 about 48.22 acres of laad remamed ia joiat holdiags. The meinbers of the family started cultivating as per tfaeir convenience aad reniaiaed ia separate possession as per family settleiaent aiter pai-tition of the laad. The defendajats No. 1 to 16 have already sold fheir shares, however, siace fhe revenue holdings were joiat aa area of 5.662 hectare continued to be recorded jointly, Accordiag to fhe plaiiititls fhe said ai'ea belongs to thein as tiiey have rcceived the same ia partition. It was further ^WBIJ <"^^^' stated ftiat by takiag fhe benefit of their name recorded ia fhe revenue records, fh.e Defendants No. 1 to 10 aad 11 to 16 have executed a sale deed ia favoiir of fhe defendaat No. 17 ia a surreptitious inaaner wifhout laformnig fhe plaiatiffs aad on a disproportionately lower price fhaa the prevaUing xnarket price. This sale deed dated 27.12.2004 for aa area of 1.800 hectares was executed for Rs. 1,50,000/-. Accordiiig to fhe plaintilfs, fhey are ia possession oftlie laad aad fhe defendaats No. 1 to 10 aad 11 to 16 have no right, title or iaterest to execute the sale deed, It was spect&cally pleaded in para 4 of tiie plaiat th.at there has been no formal partition ainongst fhe plamtifis aad fhe defendaats No. 1 to 16 by separating fhe revenue records and fhus, fhe laad is recorded joiaUy ia fheir name. It was also stated in fhe plaiat that fhe fact of illegal alienation ia favour of fhe defendant No. 17 was mformed to the concemed poUce as weU as to fhe CoUector, Superiutendent of PoUce and fhe Hoine Mmister. The objections were raised before the Sub Registrar as well as before fhe Tahsildar on earUer dates. The defendant No. 17/appeUaat denied fhe allegations and stated fhat he is m possessiou of fhe suit laad. Accordmg to hnn he has purchased tlie property after payment of valuable consideration aad has been setUed ia possession by tiie seUers aad as such no case for graiit of teiaporary iajunction is raade out. The trial Court has allowed tlie prayer for gi'aiit of temporary injunction by the iiapugued order. Leanied counsel for fhe appellaiit would subinit fhat fhe trial Court has considered a entirely new case by treating fhe suit laad as joint family property, whereas the case of tiie plaiatilfs is that fhey have .^>^^.^ rm ^J^S^ '^.^ 8. 9. received the suit property in. partitiou. Accordiag to leamed counsel for fhe appellant the tdal Court has fhus conimitted aa error and has inisdirected itself ia considermg fhe appUcation for grant of temporaiy injunction. Therefore, fhe impugned order deserves to be ititerfered wifh, Relyuig on judgnients of HonT^le Suprerae Court in Seema Arshad Zaheer aiid others Vs. Muaaicipal Corpaa. Of Qyeater Mumbai aad others1 paras 32 aad Prem Siagh aiid others Vs. Birbal and others2 para 27, leamed counsel would urge fliat fhere is a presuniption about the correctaess of fhe contents of a registered docuinent aad siace tiie sale deed ia favour of the appeUaat contains a recital about the delivery of possession, fhe tiial Court could not have recorded a findiag contraiy to fhe recital. He would also submit that fhe trial Court has acted contrary to the pleadiags made io. fhe plaiat aiid has fhus conim-itted aa error ofjiuisdiction in exercise of its discretionaiy powers. Haviag heard leamed counsel for fhe appellaat aad haviag exaBiiaed fhe record, fhis Court would notice that fhe plabittffs have pleaded fliat fhe members of the joiat famity have entered into a family arraagem-ent in fhe nature of partition aad are in separate possession. Speci&c pleadings in para 4 of tlie plaint has been made tiiat tfie revenue records ai'e joiat m fhe name of tlie plauitiffs aad ia the name of fhe defendaats No.. 1 to 16. The appeUaiit has argued fhat ia view of fhe pleadiags regardiag family arraagement m tiie nature of pardtion, fhe findm.gs recorded by tiie tdal Court fhat fhe suit is joiat property, is not correct. However, fhe findiags are not contrai^r to fhe pleadings at fhis stage, because fhe revenue records 1 2006 (5) SCC 282 2 2006(5) SCC 353 \../ 10. 11. 12. 13. contain the naines of fhe parties joiatly. Whefher or uot a partition has taken place aiid whether or not the land has faUen ia tiie share of the plaiatiffs has to be decided ia fhe course of trial. Even tf fhe case is considered wifti the angle in which ftie pleadiags ia fhe plaiat proceed, it would be noticed fhat according to tiie plaintiffs the laad has fallen ia tiieir share ia fhe famUy aiTailgeinent. Be that as it inay, fhe tdal Court has also considered fhe factuni of possession aad has observed tb.at fhe defendaat No. 17 has not lUed any affidavit ia support of his pleadiiigs of obtamuig possession. On tiie ofher had fhe plaiatiffs have field affidavits of Jagmonhaa, Ghuraudas aad Gyaadas to fhe effect fhat the appeUaiit had tded to contact fhem for cutting of fhe trees staadmg on fhe laads which ttiey have refused on fhe ground fhat fhe laad belongs to fhe plainttffs. In fheii' affidavits.it was also mentioned fhat fhe plamtiffs are ia possessionof the suit laad. The tdal Court has recorded a categorical findiag ia para 11 of tiie order that the defendant No. 17 is uot in possession of fhe laad. Froin the pleadiags niade ia fhe plauit aad fhe natiire of fhe dispute iavolved, it would appear that fhe plaiatifls have raised a tdable issue m the suit aad they are in. possession ofthe suit property. The judgnients reUed upon by fhe appeUant is about fhe terms of the recital made ia fhe sale deed. However, such presumption is rebutable presumption aad the taial Court m fhe present case has considered fhe affidavits filed by fhe plaintLBs to hold that fhe plaintifFs are ia possession ofthe laad. This Court is of the opinion tliat fhe tdal court has not considered aayfhiag which is whoUy irrelevaat or absurd. The issue of graat of teinporary iajunction lias been considered ia its true prospective. In ~^nf " 14. the matter ofWander Ltd. and aaother Vs. Aatox India P. Ltd3 ttie Honlbile Suprenxe Court has held ia para 14 as under : "14. The appeals before the Division Bench were agaiast fhe exercise of discretion by the Siagle Judge. In such appeals, fhe appeUate court wiU not iaterfere with tiie exercise of discretion of fhe court of lirst itistaace aad substitute its own discretion except where fhe discretion has been shown to have been exercised arbitrarily, or capriciously or per^ersely or where fhe court had ignored fhe settled pilaciples of law regulating grant or refusal of iaterlocutory iajections. An appeal agam.st exercise of discretion is said to be an appeal on prmciple. AppeUate court wUl not reassess fhe Biaterial aad seek to reach a conclusion different froni fhe one reached by tiie court below if fhe one reached by fhat court was reasonably possible on fhe niaterial. The appellate court would nonnally not be justified ia interfering wifh fhe exercise of discretion under appeal solely on fhe ground fhat if it had considered fhe inatter at fhe tdal stage it would have coine to a contrary conclusion, If ftie discretion has been exercised by tlie tnal court reasonably aad iii a judicial inaaner the fact that the appeUate court would have taken a different view inay not justtfy iaterference wifh fhe tdal coiirt's exercise of discretion. After referrmg to fhese principles Gajendragadkar, J. ia Rrinters (Mysore) Private Ltd, v. Pothaa Joseph (SCR 721) "... These principles are weU estabUshed, but as has been observed by Viscount Siaion ia Charles Osenton & Co. v. Jhaaaton'.*. fhe law as to the reversal by a court of appeal of aa order niade by a judge below in fhe exercise of his discretion is weU estabUshed, and aay difficulty ftiat arises is due only to fhe application ofweU settled principles ia mi iadividual case/ " The appeUate judguient does not seein to defer to this prmciple." In fhe present case the approach of fhe tdal Court ia dealmg witii tiie application for graat of teraporaiy iajunction is not peiverse. The Court has considered tiie entire material on record and has exercised 1990 (Supp) SCC 727 ^'.-"•"^- <r./'^ ^'^ ^^, 1 6 its discretionary jurisdiction. An appeal agamst exercise of discretion 1s aa appeal on priaciple. Thus, this Court is not iaclmed to iaterfere wifh the impugned order passed by tiie tdal Court. ConsequenUy tlie appeal fails aad is tiierefore disinissed. No order asto costs. Sd/- Prashant Kumar Mishra Judge Thakur 1