RAJ KUMAR Vs. H L F ENTERPRISES

JUDGEMENT

(1.) IN the present case, the petitioner-plaintiff filed a suit praying for a decree of declaration to the effect that the order of Assistant Collector Ist grade dated 30. 6. 92 and Rapat Roznamacha No. 564 and the order of Collector dated 20. 11. 93 for the change in the nature of the suit land and change in entry in khasra girdawari are illegal, null and void. The plaintiff further prayed for permanent injunction restraining the defendant from dispossessing the plaintiff from the suit land. The case of the plaintiff as stated in the plaint is that he is in cultivating possession of the suit land and previously, the suit land was possessed by the Panchayat Deh. The defendant Purchased the suit land from Panchayat vide registered sale deed 18. 12. 1991 and the mutation No. 1258 dated 20. 12. 1991 was sanctioned in favour of the defendant-respondent. In the plaint inter alia, it was alleged by the plaintiff that the order passed by the Assistant Collector dated 30. 6. 1992 and Rapat Roznamcha No. 564 with regard to change of nature of the revenue records were illegal as the said order was passed without affording any opportunity to the plaintiff. Along with the plaint, the plaintiff filed an application under Order 39 Rules 1 and 2 for interim injunction and the said application was allowed by the learned trial court vide order dated 17. 5. 1996 and the defendant-respondent was restrained from interfering in the possession of the plaintiff over the suit land till the final disposal of the suit. Aggrieved by the said orders, the defendant-respondent filed an appeal which was allowed by the Additional District Judge, Gurgaon vide his order dated 17th February, 1997 and the application filed by the plaintiff-petitioner under Order 39, Rules 1 and 2 before the learned trial court was dismissed. Against the said order dated 17th February, 1997 the present petition has been filed by the petitioner.

(2.) MR . Jain, learned counsel appearing on behalf of the petitioner submitted that the claim of the petitioner-plaintiff over the suit land was based on the Jamabandi for the 1985-86 in which the plaintiff was shown as Gair Marusi in the column of cultivation and the nature of the land shown in the said Jamabandi was Magda. He submitted that vide order dated 30. 6. 1992 and 20. 11. 93 passed by the revenue authorities, the nature of the land had been changed from Magda to Gair Mumkin which was illegal. He further submitted that the Assistant Collector Grade II vide his order dated 30. 6. 92 ordered the change of entries in the khasra girdawaris in favour of the defendant but the said order was illegal and in violation of the standing instructions issued by the Financial Commissioner as no notice was given to the plaintiff before passing the order though the plaintiff was still in cultivating possession over the suit land. He further submitted that presumption of truth is attached to Jamabandi entries under Section 44 of the Land Revenue Act. He, therefore, contended that the order passed by the learned trial court granting interim injunction in favour of the plaintiff was legal and valid and the learned lower appellate court was not correct in reversing the order passed by the learned1 trial court. In support of his submissions the learned counsel placed reliance on a judgment of a Division Bench of this court in Jarman Singh v. Financial Commissioner, 1995 P. L. J. 66. The learned counsel also submitted that injunction can be granted against true owner also. In support of this submission, he placed reliance on a judgment of the Supreme Court in Walter Louis Franklin dead through LRs. v. George Singh dead through LRs. , 1997 (2) Recent Civil Reports 41.

(3.) I have given my thoughtful consideration to the submission made by the learned counsel for the parties and have perused the records. From the impugned order dated 17th February, 1997 passed by the learned Additional District Judge, I find that as per previous Jamabandis placed on record, the land in dispute was recorded as Gair Mumkin Nala right from the year 1939-40 and the said entries continued upto the year 1985-86. It was only in the Jamabandi for the year 1985-86 that a stray entry in favour of one Karam Singh and Charan Singh was shown regarding a part of khasra No. 529. It is further stated that the village Panchayat Deh had initiated proceedings under Section 7 of the village Common Lands Act against them and they admitted during those proceedings that they had never remained in possession of the said Khasra Number. The petitioner-plaintiff has not been able to bring on record any document to show as to how he came into possession over the suit land in the year 1985-86 and as to how change in revenue records was effected in the year 1985-86. It may be relevant to point out that after the year 1985-86, there is no revenue record to show that the plaintiff was in possession of the suit land. On the contrary the respondent-defendant purchased the suit land vide registered sale deed dated 18th December, 1991 and the mutation was sanctioned in their name on 20. 12. 91 vide order dated 30. 6. 92 passed by A. C. IInd Grade and further the letter dated 19th May, 1994 written by the Tehsildar, Gurgaon (annexure R-4) shows that as per report of Patwari the defendant is the owner of the land comprising in khasra Nos. 528, 529, 534 measuring 25 bighas 3 biswas as persale deed No. 6950 dated 18. 12. 1991 and the said land was mutated in favour of the defendant on 19. 12. 1991 vide mutation No. 1258. The aforesaid documents prima facie show that the defendant-Company is owner in possession of the suit land and as such it cannot be said that the order passed by the learned lower appellate Court setting aside the order passed by the learned trial Court and refusing to grant interim injunction in favour of the plaintiff, is arbitrary or perverse. As held by the Apex court in Premji Ratansey Shah and other's case (supra), no injunction can be issued in favour of the trespasser against the true owner. Since even according to the case of the plaintiff himself, there is only one stray entry in the jamabandi for the year 1985-86 and the plaintiff has failed to bring on record any document to show as to how this stray entry was made in his favour, the plaintiff-petitioner is not entitled to any interim injunction simply on the ground that he was not given any notice before making change in the revenue records.