SURJA AND OTHERS Vs. GOPI AND OTHERS

JUDGEMENT

(1.) The petitioners Surja and others are defendants in a suit brought by the respondents Gopi Nath and others seeking declaration that they were co-sharers in possession of 194 bighas 19 biswas of the land in dispute situate in village Rana Majra, and the order of the Executive Magistrate, dated 15th May, 1967, made under Section 145 of the Criminal Procedure Code declaring the defendants-petitioners to be in possession of that property on 1st August, 1963, was ineffectual qua them. In the initial stages of the suit, an application for temporary injunction restraining the present petitioners from interfering with the plaintiffs' possession of the disputed land was made. It was asserted that the plaintiffs had been in possession of the land throughout, and the finding of the Executive Magistrate that the opposite party was in possession on 1st August, 1963, was wrong, and they had no right to disturb the plaintiffs' possession. The learned Subordinate Judge accepted this plea and granted a temporary injunction by his order dated 10th March, 1969, holding that prima facie the plaintiffs were in possession of the suit property. This finding was based on Naqsha Jim i.e., file of Burdi Bramdgi, prepared in 1966. In granting the interim injunction, the learned Subordinate Judge observed :-

(2.) In confirming this order, the learned Additional District Judge, to whom the appeal was taken by the contesting defendants, again mainly relied upon this Naqsha Jim and treated it as a prima facie evidence of the plaintiffs' possession. The final order passed by the Executive Magistrate under Section 145 of the Criminal Procedure Code on 15th May, 1967, whereby it was held that the defendants (petitioners) were in possession of the land in suit on 1st August, 1963, was brushed aside by him merely observing.

(3.) Mr. R.S. Mittal, arguing the case on behalf of the petitioners, has, besides contending that the respondents were never in possession of the land in dispute, urged that the learned Subordinate Jude had no jurisdiction to grant the interim injunction prayed for because (1) the case was not covered by either rule 1 or Rule 2 of Order 39 of the Civil Procedure Code as the suit was for declaration simpliciter without there being any prayer for permanent injunction, (2) the Courts had committed a legal error in observing that Naqsha Jim, which their finding with regard to possession proceeds carried presumption of truth, and (3) the final order of the Executive Magistrate passed under Section 145 of the Criminal Procedure Code was prima facie evidence of the petitioners' possession, and the plaintiffs could not be permitted to urge that they were in possession of the property on 1st August, 1963, or had continued to be in possession till the date of the suit without there being any entry that the petitioners' having been dispossessed.