SHARBATI Vs. BRAHMA DUTT

JUDGEMENT

(1.) This is a revision petition against an appellate order by the Senior Subordinate Judge, Narnaul, exercising enhanced powers, whereby the order of the trial Court was reserved and a temporary injunction was granted against the petitioners by suspension of the execution of the order dated 4.8.1978 of the Assistant Collector Ist Grade, Rewari, and the revision-petitioners were restrained from dispossessing the contesting respondents from the land in dispute pending disposal of the suit. It has arisen in the following circumstances :-

(2.) At the outset, an objection has been raised by the learned counsel for the respondents that this Court cannot interfere in revision in a matter like this where temporary injunction stands granted by the lower appellate Court, however erroneous, wrong and illegal that order may be unless, of course, it has gone wrong on jurisdiction. It is contended that the order prima facie is within the jurisdiction of the lower Appellate Court and its order should be left uninterfered with. On the other hand, the learned counsel for the petitioners contends that the trial Court was conscious of the well-known three foundational considerations, that is, (i) prima facie case, (ii) irreparable loss and injury, and (iii) balance of convenience, and to which the lower Appellate Court while dealing with the appeal became oblivious and got itself involved in the territorial tangle led forth by the respondents.

(3.) The rival contentions of the parties apart, one thing is crystal clear that the order of the revenue officer under challenge is only on the basis of lack of territorial jurisdiction and not on merits. The Assistant Collector Ist Grade are earmarked territorial jurisdictions in accordance with Section 23 of the Punjab Land Revenue Act and they remain under the administrative control of the Collector under Section 12 of the said Act. It is presumably in the exercise of the latter power that the Collector on acceptance of the suggestion of the Assistant Collector Ist Grade, Rewari, transferred the partition proceedings to Assistant Collector Ist Grade, Narnaul. The basic jurisdiction remained with the Assistant Collector Ist Grade, Rewari, but on account of the exigencies of the case stood lent to the Assistant Collector Ist Grade, Narnaul. An appeal against that order, when preferred before the Sub divisional Officer, Narnaul (exercising the powers of the Collector) could well have been entertained and decided by him, for, the officer deciding the original cause was under his appellate control. But equally and validly, it could be said that when he transferred the appeal to the file of the Sub Divisional Officer, Rewari, (exercising the powers of the Collector) for territorial exigencies since the original matter had cropped up in that jurisdiction, the latter officer had resumed the lent jurisdiction at the appellate stage. The original cause had surely arisen within a territorial jurisdiction over which he had the appellate powers. His assuming the jurisdiction on the requisition of a colleague of equated jurisdiction could not, by any stretch of imagination, be called an inherent lack of jurisdiction exercised by him in appeal. His accepting the appeal pursued by the respondents resulted in the order of remand. Even if by any stretched reasoning, it be held that the Collector, Rewari, had no territorial jurisdiction in the matter in the resumed way, as he did, the respondents can hardly have any grouse for the exercise of that power since they submitted to it and by their conduct and acquiescence cannot be permitted to get out of it, especially when the said officer had the initial appellate jurisdiction. The respondents cannot be allowed the joy of sitting on the fence and having lost the cause in the ultimate, to turn around and oust the arena of the dispute by raising the quibble of territoriality. The original cause in the lis was only a partition of the joint holding. No niceties are attached to particular officers who alone could be said, in the circumstances, to have decided, rightly and legally and not the other. This aspect of the case was altogether ignored by the lower Appellate Court and, obviously, there has been a material irregularity in the exercise of its jurisdiction capable of being corrected under Section 115 CPC.