CHHAGANLAL Vs. NANE SHAH

JUDGEMENT

(1.) Both the revision petitions arise out of the judgment dated March 18, 1976, of the learned Additional District Judge No. 2, Jodhpur under which the learned Judge dismissed the Civil Miscellaneous Appeals Nos. 27/72 and 26/72 preferred before him out of miscellaneous proceedings under Order XXXIX Rules 1 and 2, C. P. C arising out of two suits Nos. 281/71 and 258/71, filed by Manoharsingh, non-petitioner No. 1 (hereinafter referred to as "the plaintiff") in the trial court. Under the aforesaid judgment, the learned Judge affirmed the order of the trial court issuing a temporary injunction against the petitioners and others restraining them from taking possession of the suit property under any order passed in Criminal Miscellaneous Case No. 60/660 (of This Court) under Section 145, Cr. P. C. or otherwise fill the decision of the suits. Plaintiff, firstly, filed a suit No. 258/71 in the court of learned Munsif against Nane Shah and Shankerlal, Smt. Ratandevi, Smt. Prembai, all legal representatives of one Ramkumar Garg and also against Kahisingh for a declaration that he is a tenant of Ramkumar Garg and for permanent injunction. In the suit, it was stated that he has been inducted as a tenant by Kalusingh general power of attorney holder (Mukhtiar Aam) of Ram Kumar and he was not bound by the order of the criminal court passed in proceeding's under Section 145, Cr. P. C. under which it was directed that the possession be delivered to Nane Shah and his tenants. A relief for permanent injunction was also claimed that he should not he dispossessed under the order at the criminal court and can only be evicted by due process of law. An application for temporary injunction under Order XXXIX, Rules 1 & 2, C. P. C. was filed and an ex parte temporary injunction was issued as prayed for which later on was confirmed. As in the earlier suit filed by the plaintiff, the tenants of Nane Shah, namely, Chhaganlal, Smt. Ratandevi, Mangilal. Hazarjlal, Prabhulal, who were in possession as tenants at hiP time when the subject of dispute was attached by the City Magistrate in proceedings under Section 145. Cr. P. C. were net parties and were also ordered to be given possession by this Court, the second suit No. 281/71 was filed by the plaintiff against Nane Shah and the aforesaid tenants and in that suit also an application under Order XXXIX Rules 1 and 2. C PC was filed and a temporary injunction in the terms staled earlier, was passed re-straining Nane Shah and his abovenamed tenants from dispossessing the plaintiff under the order of the criminal court. That order was also later on confirmed. Two appeals were filed and the learned Additional District Judge, Jodhpur. as already stated earlier, affirmed the orders of temporary injunction issued by the trial court in both the suits. Two revisions have been preferred in this Court and as identical questions are involved, they are being disposed of together.

(2.) The contention of the learned advocate for Nane Shah and his tenants is that there was an order if the criminal court in proceedings under Section 145, Cr. P. C. that on the day the subject of the dispute was attached Nane Shah and his abovenamed five tenants were in possession and that the possession should be handed over to them. He therefore, submits that in view of the aforesaid order both the courts have erred in holding that there was a prima facie case in favour of the plaintiff. According to him in arriving at a finding that there was a prima facie case in favour of the plaintiff, the lower courts below have not taken into consideration some material evidence on record and, therefore, the aforesaid finding of The learned courts is vitiated. It is also contended that in view of a clear finding of the High Court while dropping the proceedings under Section 145. Cr. P. C under order dated April 20, 1971, that on the day the suit property was attached in proceedings under Section 145. Cr. P. C. Nane Shah and his abovenamed five tenants were in possession and that possession should be handed over to them, the learned Munsif could not have issued a temporary injunction and a fairly good prima facie case was required to grant the in junction in favour of the plaintiff. Mr. Calla, the learned counsel for the plaintiff in the forefront has raised a preliminary objection that no jurisdictional illegality or error has been committed by the trial court as well as the lower appellate court in issuing an injunction and, therefore, in revision under Section 115. C. P. C. this Court has no powers to set aside the order of temporary injunction, issued in favour of the plaintiff.

(3.) Before I take up the preliminary objection raised by Mr. Calla and the other submission made before me, it is necessary to state some relevant facts in brief as they, in my opinion, have a material bearing. They are as follows:- There is a land known as Chand Shah-Ka-Takiya situated outside Sojatigate, Jodhpur. Naneshah who is one of the petitioners in the revisions, was in possession of the land as owner whereof. On June 20, 1954, said Naneshah sold a portion measuring 11,112 sq. yards out of the aforesaid land to Ramkumar Garg, who is now represented by non-petitioners Shankerlal and two others. He is said to have delivered possession to Ramkumar. Naneshah along with his wife Smt. Hafiza continued to reside on a portion of land as tenant of Ramkumar and is also said to have instructed the other tenants that he has sold the land to Ramkumar and they should pay rent in future to him. But, he refused to execute the sale-deed and an endorsement to that effect was made by the Sub-Registrar as required by law. There were some suits filed by Ramkumar and Naneshah. The suit filed by Naneshah against some of the Tenants, was dismissed, but, one filed by Ramkumar against Naneshah for ejectment and arrears of rent (Suit No. 2/54) was decreed against Naneshah, but the decree was ultimately set aside by this Court in second appeal and that suit is still said to be pending. Ramkumar is said to have sold some portion of land to Kalusingh, non-peti-tioner who was also his 'Mukhtiar Aam' for the suit property. In 1964, a dispute between Naneshah and Ramkumar arose over the said land and Kalusingh on behalf of Ramkumar instituted proceeding under Section 145, Cr. P. C. in the court of City Magistrate. Jodhpur, against Naneshah and others on March 6, 1964, and the said proceedings terminated in favour of Ramkumar on November 10, 1965. Possession of the land was handed over to Ramkumar by the Receiver through Kalusingh, agent of Ramkumar on November 11, 1965, and on November 1'5, 1965, Kalusingh let out on rent the suit-property to the plaintiff on a monthly rent of Rs. 150/-. On the said land, there were also five shops. A revision was filed against the order of the City Magistrate in the court of Additional Sessions Judge No. 1, Jodhpur. An application was filed on behalf of the Board of Muslim Wakf, Rajasthan, Jaipur, for being impleaded as a party as it claimed that the subject of the dispute in proceedings under Section 145. Cr. P. C. was wakf property, the same being mosque and Takia and graveyard. The application was allowed and the Wakf Board was ordered to be made a party and a recommendation to this Court on a reference was made. The Wakf Board, who claims the property as wakf property, filed a suit on 18th May, 1966 in the court of Senior Civil Judge, Jodhpur, and claimed a declaratory relief that the property was wakf property and all the defendants in the suit he evicted In the aforesaid suit which is still pending Ramkumar, Kalusingh through whom the plaintiff claims, have also been impleaded along with others. In that suit a receiver has also been appointed. By that time, Ramkumar had died and it appears that Shankerlal and two other legal representatives of Ramkumar Garg filed an application before this Court that they are not interested to continue proceedings and in taking possession thereof, and therefore, the learned single Judge of this Court set aside the aforesaid order of the City Magistrate and ordered that the possession of the property be handed over back to the persons from whom it was taken by the S. H. O. Police Station Udaimandir. There was no clear material on record as to from whom possession was taken at the time of attachment, therefore, an enquiry was ordered by this Court and the City Magistrate, Jodhpur, enquired into the matter and under his detailed report dated July 15, 1968, held that on the day the subject of dispute was attached in proceedings under Section 145 Cr. P. C., Naneshah and his abovenamed tenants were in possession and property had been attached from their possession. The report dated July 15, 1968, was accepted by the Division Bench of this Court under order dt. April 20, 1971 and it ordered that the possession be delivered to Naneshah and abovenamed five tenants. The plaintiff filed two suits, thereafter, for the reliefs as already stated and in both the suits filed an application for temporary injunction, which was granted and the appeals too were dismissed.