Resgondents : Devendra singh S/o Mikram Defendants Aged about 47 years, Caste Bargah Hindu), Occupation — Service (Teacher) at present R/o Village Salfa, vago, Tahsil « Kota, Dist : Bilaspur — {c.G.) Malikram /o axman Singh, Caste — Baxgah Tahsil — Mungeli, (Hindu) Dist R/o : Bilaspur Village — Khuari,\ C.G.) Ramsharan Sing @ Manharan Sinh S/ Malikram, Aged about 2 years, Ocuation e Service at prese o Gadchandui, Manikgarh, Dist Chandrapur (M.S.] . tate of Chhattisgarh, Through The Coilectom Bilasppr—(CGJ Note : Respondent no.2 / Defendant no.2 Paraga Bai died during pending of the 3 suit and also deleted the suit of the cause title. v/V RI PETITION UNDER ' ARTICLE 227 V/ OF THE CONSTITUTION / W OF INDIA ( al ‘ — ( Naan ‘ S L \ pv ( h g o 4 cp nt R/ 5 S “" ‘ r i, §i §I3i ‘ gig; q :«f g Z: NE (K m 15) ’h A5 § Q; Q’QRQ Kong: “35' ¢ ..- Q a $91 a a , ggN THE HIGH QOURT QF JUIDICATURE CHHATTISGARH AT z‘ g § RILAsPUR , . SINGLE BENGH n. v WWW. 9,2 17 ' 2005 Petitioner /Ramkrishn Singh S/o Malikram, 41 R/o Village — Plaintiff Aged about years, Tahsil ~ Mungeli, Khapari, Bilaspur~(C.G.) Dist : Bilaspur~(C.G.) Versus HIm GH COURT OF CHHATTISGARH : BILASHJR WRIT PETITION NO. 2227 OF 2095 RAMKRI’SHN smGH VS. DEVENDRA SINGH & OTHERS POST FOR ORDER ON 20-1 1-2006 J J SdL Dhirendra Mishra Judge I M HIGH COURT OF CHHATTISGARH : BILASPUR ‘ Writ Petition No. 2227 of 2005 Petitioner! Plaintiff Ramkrishn Singh Vs. Respondents] Defendants Devendra Singh 8. others Petitianerlplaintiff by Shri Bharat Rajput, Advocate. Respondents/defendants by Shri Prafull Bharat, Advocate. O R D E R (Passed on 10 I11I06) DHIRENDRA MISHRA, J The petitioner by the instant petition under Article 226/227 of the Constitution of lndia has impugned the order dated 9.5.2005 of Annexure P/13 by which ieamed ii-Additional District Judge (FTC), Mungeii (C.G.) has dismissed the misceiianeous civil appeal preferred against the order dated 23.6.2003 of Annexure P/12 passed by Civil Judge. Class-i, Mungeli whereby the application of the petitioner for temporary injunction was dismissed . 2. Facts of the case for the purpose of disposal of this petition may be summarized as under: The petitioner, respondente Nos. 1 and 4 aresons of respondent No. 3 ' whereas Smt. Paraga Bai (respondent No. 2, since deceased) was their mother. The petitioner filed a civil suit of Annexure P/1 for declaration with the averment that respondent No. 3 purchased the suit land described in schedule appended L with the plaint in the name of their mother Paraga Bai. Respondents No. 1 and 4 h). were government employees. Since the fathér and mother of the petitioner were not able to look after the cultivation due to their old age and weakness, they persuaded the petitioner not to join government service and promised him to give a bigger share in the agricultural land and accordingly, 4.18 acres of land was got mutated in the name of the petitioner and wife of respondent No. 4 some 12 years prior to tiling of the suit and since then he obtained possession and i developed the land by installing irrigation pump. However, behind the back of the petitioner the land desoribed in schedule was mutually partitioned between respondents No. 1 and 4 in connivance with the revenue officers. The partition of the land in favour of respondents No. 1 and 4 is void being contrary to the provisions of Section 178 of Land Revenue Code and rules framed thereunder. i However, on the basis of void partition the respondents moved an application under Section 250 of the Land Revenue Code vide Annexure P16. The Tehsildar, Bilaspur vide order dated 31.5.2003 (Annexure P/14) allowed the application of respondents No. 1 and 4 and held that thevpetitioner is in illegal possession over the land recorded in the name of respondents No. 1 and 4’and therefore, the possession of the respondents No. 1 arid 4 is handed over to them by dispossessing the petitioner. 3. Respondent No. 1 and his mother Paraga Bai in their written statements denied the allegations o_f the plaint and submitted that in fact Paraga Bai has purchased the disputed land from her own resources and as such it was her self acquired property. The petitioner had got his name recorded over the disputed property in connivance with the revenue authorities. However, mutation in his favour was set aside in appeal. Paraga Bai was residing with respondents No. 1 and 4 and she had transferred her self acquired property in their name, voiuntariiy, therefore, question of petitioner's entitlement of ‘A share over the suit iand does not arise. 4. i in reply to the application of the petitioner for temporary injunction it was submitted that the petitioner has got his name mutated in the revenue record over the suit land against which the respondent Nov 1 preferred revision which was allowed and the mutation in favour of the petitioner was set aside and the matter was-remanded back to Tehsildar for fresh adjudication. Since the petitioner was creating obstruction in the possession of responden$ No. 1 and 4, they initiated proceedings under Section 250 of the Land Revenue Code. it was further objected to that the suit for declaration simpiicito’r has been tiled without any pleading that the petitioner is in possession and a relief of permanent injunction has not been claimed, therefore, the order of temporary injunction cannot be passed in favour of the petitioner. Whereas respondent No. 3, father of the petitioner, has supported the claim of the petitioner. 5. The trial Court vide order dated 23'“ June 2003 rejected the application for temporary injunction (Annexure P/12) with a finding that the instant suit for declaration of title was barred 'by Section 4(1) of Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as ‘Act of 1988’) as the petitioner has pleaded in the plaint that his father Malikram purchased the suit land in the name of his mother Paraga Bar and Sub-section 3(a) of Section 4 of the Act of 1988 Is not applicable in the present case because Paraga Bai, wife of Malikram, is not a coparcener in a Hindu undivided family, that the suit was premature as the same has been filed during the lifetime of Paraga Bat for declaration of title and the proceedings under Section 250 of the Land Revenue Code were initiated for obtaining possesswn before the competent revenue Court by respondents 69‘” @ No. 1 and 4 and if any injundion order is passed against them, it wiii cause more ' inconvenience to the respondents. Leamed triai Court further held that where a person in possession is dispossessed forcibly and illegally, he is entitled for protection of possession, on the contrary, where a person ts in possession without any lawful title and if he is dispossessed by a process of law, the possession of such person cannot be protected, therefore, the question of irreparable injury to the petitioner does not arise. 6. Appeal preferred by the petitioner has also been dismissed vide order of Annexure P/13 with identical findings. 7. Learned counsel for the petitioner submiw that the orders of both the Courts below are primarily based on misinterpretation of the Act of 1988. Learned Civil Judge has virtually dwided the fate of the suit by hoiding the same not maintainable in view of Section 4(1) of the Act of 1988. Both the Courts below have disregarded this fact that the petitioner was in possession of the suit land and the Tehsildar vide order of Annexuve PI14 without recording a hnding as to when the petitioner dispossessed respondents No». 1 8. 4 from the disputed land. has directed to hand over possession of the suit land to them by dispossessing the petitioner in utter disregard to provisions of Section 25D of the Land Revenue Code. The appeal preferred by the petitioner has been summarily rejected by the Sub Divisional Officer vide order dated 9.5.2005 on the ground that a title suit with respect to the disputed land is pending before the Civil Court. 8. On the other hand, Shri Prafull Bharat learned counsel appearing for the respondents submits that both the Courts below in exercise of their jurisdictions have rejected the application for temporary injunction on the sound principles of Iii Iaw after recording a iinding that the petitioner dues not have a prima facie case, the balance of convenience is in favour of the respondents and if the iniunetion is passed the respondents shall suffer irreparable loss as they shall be restrained from recovering possession of the suit property through lawful means. lt is argued that possession is to be delivered to the respondents on the basis of orders passed by a competent revenue Court under Section 250 of the Land Revenue Code. The above order has been passed after due notice to the petitioner and the appeal preferred by the petitioner has been summarily dismissed and in the aforesaid circumstances, tn the garb of an order of temporary injunction, execution of the orders of revenue Courts cannet be . stopped. 9. Placing reliance on the judgment of the Hon‘ble Supreme Court in the matter of Surya Dev Rai Vs. Ram Chander Rai and others reported in AIR 2003 5.0. 3044, it is argued by learned counsel for the respondents that for issuance of writ of certiorari and for the purposes of exercise of supervisory jurisdiction it is to be established that : (i) that erroncommitted by the Courts below is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. The Hon'ble Apex Court in the above matter held as under; “The power to issue a writ of certiorarl and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where judicial conscious of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the aforesaid two jurisdictions is sodght to be invoked during the pendency of a‘ny suit or proceedings in a suborwmate Court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feei inolined to intervene where the error is such. as, if not corrected at that very moment. may become incapabie of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in proionging of the iis.” 10. l have heard learned counsel for the respective parties and perused the orders passed by both the Courts below whereby application for temporary injunction preferred by the petitioner has been rejected. 11. Learnedtrial Court has held that the petitioner‘does not have a prima facie case on the ground that the petitioner has pleaded in his suit that the iand in question was purchased by his father (respondent No. 3) in favour of his mother Paraga Bia (since deceased, defendant No. 2) and thus, the suit is barred under section 4(1) of the Act of 1988. The above hnding of the trial Court which has been subsequently confirmed by the lower appellate Court, prima facie appears to be based on misinterpretation of the Act of 1988. For this, 3. Prohibition of benami transactions. - (1) >0000< xxxxx XXXXXX)0(XXX)OOO(XX)0(XXXXXX (2) Nothing in subasection (1) smil appiy to -— (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; 4. Prohibition of the right to recover property held benami. -—\(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behaif of a person claiming to be the real owner of such property. ' (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the reai owner of such property. (3) Nothing in this section shall appiy, - (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is heid for ‘ the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a tiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. g ” , x r 12. S "Neither the filing 0f suit nor iaking of a defence in respect of either the present or past benami transaction involving the purchase of propeny by a person in the name of his wife or unmarried daughter is prohibited under sub-sections (1) and (2) of $ection 4 of the Act. But, it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the \ case may be, because of the, statutory presumption contained in sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit." 13. The Hon’ble Apex Court in the matter of G.Mahalinqappa Vs. G.M. Savitha reported in (2005) 6 SCC 441 while dealing with section 3(2) and Section 4(2) of the Act of 1988 has held thus: “24. Section 3(2). makes it abundantly clear that if a property is purchased in the name of an unmarried daughter for her beneht,‘ that would only be a presumption but the presumption can be The Hon’bie Supreme Court in the matter of Nand Kishore Mehra Vs. ushjla Mehra reported in AIR 1995 SC 2145 while dealing with sections 3(2) and 4(1)(2) rejected the application of the defendant for rejection of the plaint and held thus: rebutted by the person who is alleging‘to be the real owner of the propetty by production of evidences or other materials before the , court. In this case, the trial court as well as the appellate oourt concurrently found that although the suit property was purchased in the name of the respondent but the same was purchased for the interest of the appellant. We are therefore of the opinion that even if the presumption under Section 3(2) of the Act arose because of purchase of the suit property by the father (in this case the appellant) in the name of his daughter (in this case the respondent), that presumption got rebutted as the appellant had successfully succeeded by production of cogent evidence to prove that the suit property Was purchased in the benami of the respondent for his own benefit.“ 14. ln the present suit also the petitioner has claimed that the disputed property though recorded in the name of his mother Paraga Bai but the same was purchased by his father, respondent No. 3 Malikram and it was given to him in share and accordingly, the land was mumted tn his name. However, revision preferred by the respondents was allowed by the Collector and the matter was remanded back to the Tehsildar but Tehsildar without issuing notice to the petitioner mutated the record in the name of respondents No. t & 4 and thereafter, the respondents on the strength of mutated revenue record applied under Section 250 of the Land Revenue Code and Tehsildar ordered handing over of possession of the suit land to the respondents after dispossessing the petitioner. Respondent No. 3 Malikram has also pleaded stmiiariy. ,,,,, i x ,,, 15. Thus, in the Iight of the above judgménts, finding of the mat Coun that the suit was barred in vkw of Section 4(1) of the Act of 1988 is an error manifest and apparent on the face of the proceedings and the same is based on ciear ignorance and utter disregard of the provisions of law. 16. The Courts below whiiedeciding the appiication for temporary injunction have not gone into the factum of posseSSion. The suit was flied on 4.1 .2002 and ‘ the appiication for temporary injunction was fried by the petitioner on 26.10.2002, however, during pendency of this application Tehsildar vide order dated 31.5.2003 directed handing over of possession of the suit land to respondents No. 1‘ & 4 after dispossessing the petitioner. From subsequent documents filed by the petitioner it appears that possession of the suit iand continued with the petitioner and the petitioner has sown crop in the current year aiso. Therefore, this Court is of the considered View that the order impugned which is based on clear ignorance of provisions of law would detinitely occasion a grave injustice as the petitioner shall be deprived of the crops sown by him. 1?. in the aforesaid circumstances, the petition is aiiovved. Orders passed by both the Courts below of Annexure P-12 dated 23.6.2003 and Annexure P-13 dismissed, are set aside. it is directed that status-duo with respect to possession of the suit property as it was existing on the date when the order of Annexure P-12 dated 23.6.2003 was passed, shalt be maintained by the parties, till disposal of the suit. sty— Dhirendra Mishra Judge i\ . ‘ l