NABA WAZA Vs. GH MOHI-UD-DIN DAR

JUDGEMENT

(1.) IN a suit for declaration and permanent injunction filed in the Court of Munsiff, Anantnag on 2 -7 -1976 a temporary injunction was issued against the defendants -petitioners directing them not to cause any interference in the possession of the plaintiffs -respondents. An application soon thereof was presented by the Plaintiffs in the trial court submitting therein that the defendants had in complete violation of the interim order obstructed the pathway by raising a Pacharbandi on it and as a consequence rendered the pathway absolutely unusable for the plaintiffs. The application was supported by an affidavit and the trial court issued notice to the other side who also submitted its objections and affidavits and the matter was thereafter argued before the trial Munsiff who vide his order dated 23 -7 -1976 came to the positive finding to the effect that the defendants appear to have errected Pacharbandi after the institution of the suit and therefore were directed to remove the same in order to bring the suit property to the position as it was at the time of the institution of the suit. The trial court arrived at this finding of fact on several grounds. The first was that the application was supported by an affidavit and the second was that with the plaint the site plan submitted by the plaintiff did not show anywhere the existence of Pacharbandi on spot and also on the report of the process server who had gone on spot for serving the summons on the defendants had not reported that any Pacharbandi was in existence. The learned trial Judge also took into consideration the averments made by the defendants in their affidavits in which, according to him, they had not in unambiguous and clear terms claimed the existence of Pacharbandi on spot before the institution of the suit. The decision of the trial court having gone against the defendants -petitioners, they went in appeal before the learned District Judge, Anantnag, who after hearing the parties and after going through the record agreed with the conclusions arrived at by the trial judge and in consequence dismissed the appeal. Against these two orders, one that of the learned Munsiff and, the other passed by the learned District Judge Anantnag, the present revision has been filed.

(2.) THE learned counsel for the petitioners has argued that the trial Judge as well as the lower appellate court have both erred in deciding the question as to whether the Pacharbandi was in existence at the time of the institution of the suit or not. His submission was that question has been decided without recording any evidence and that he has not been given a fair chance to prove that the Pacharbandi was in existence long before the suit. He has further submitted that the trial court even after having been informed that the revision has been filed in the High Court refused to stay the proceedings and when the said order from the High Court was taken to the trial court, it again refused to restore the position on spot as it existed before the stay order was issued.

(3.) ON the other hand the learned counsel for the respondent submitted that the learned trial judge or for that matter the learned District Judge have committed no mistake or error in law as the orders, they made, have been passed after hearing both the sides. He further submitted that the impugned order not being the final order, no revision under section 115 C. P. C. was maintainable. According to him the matter has been decided on sufficient material on record and that there was as such no question of the matter having been decided without any evidence.