MANA Vs. MOOLHAS

JUDGEMENT

(1.) Revision nos. 4 and 5 of 1957 (Pali) arise out of an order of the Additional Commissioner, Jodhpur and give rise to common questions of law and fact, hence they will be disposed of by this judgment.

(2.) Put briefly the facts of the case are that two suits were instituted in the court of the Assistant Collector Bali, one by Mana, plaintiff alone in respect of Khasra No. 76 and the other by Mana and three other persons in respect of Khasra No 52 against the same set of defendants numbering 40 in all with the allegations that the plaintiffs were the recorded Bapidars of the land in dispute with continuous since 30 years; that the defendants threatened to invade the land and to interfere with the exercise of their rights and that they may be restrained through a permanent injunction. Simultaneously with the presentation of the plaint an application for an interim injunction was also put up in the trial court which was allowed on 4.7.1956 and the following order was passed : - - "The applicant states in his application that his land Khasra No. 76 (52) is likely to be invaded by the defendants and hence prays for issuing temporary injunction for restraining them from doing the same. His application has further been suppoted by his affidavit. The suit is alleged to be for permanent injunction. In the circumstances of the case notice to the defendants be issued to show cause why temporary injunction should not be issued against them. They are restrained from the intended invasion on the aforesaid land." The defendants in their written statement denied the allegations in the plaint and pleaded that on 6.10.1955 the plaintiff had dedicated the land to the entire village communi?y for grazing of the cattle; that since then the plaintiffs were not in poss -ession of the land ; and that be defendants had been in possession of the same. Subsequently on 2 -2 1957 the defendants put up an application alleging that the plaintiffs were going to dig a well in the land and for the preservation of the status quo they should be restrained from so doing. After hearing the parties the learned Assistant Collector cam - to the conclusion that locking to the revenue record the plaintiff appeared to be in possession prima facie; that the dedication or surrender was a thing to be examined into throughly. He therefore, ordered that the temporary injunction issued against the defendants be made absolute. The defendants went up in appeal before the learned Additional Commissioner in both the cases and the same were decided by one common judgment. The learned Additional Commissioner disagreed with the trial court and ordered that that the plaintiff should be prevented from constructing a well in the land in dispute and thus the status quo ought to be maintained. Revision No. 4 has been filed by Mana and others plaintiffs in respect of Khasra No. 52, and revision No. 5 by Mana plaintiff in respect of Khasra No. 26.

(3.) We have , beard the parties and have examined the record as well. It has been strenuously argued by Shri Prem Nath Dutta :before us that the learned Additional Commissioner was not justified in interfering with the proper exercise of discretion by the trial court. A I. R. 1934 Calcutta 694 has been cited in this connection wherein it was observed that the order passed under Order 38 Rule 5 and Order 39 Rule 1 are discretionary and an appellate court will not interfere with the exercise of a lower courts discretion unless satisfied that the judge acted on wrong principle*. The mere fact that the appellate court might have taken a different view is not a sufficient ground for interference. If the Judge rightly appreciates the facts and applies to those facta the true principles that is a sound exercise of jurisdiction. Another case cited in this connection is AIR 1933 Nagpur 153, wherein it was held that the discretion exercised b\ the lower court being exercised judicially, and the facts having been correctly appreciated an appeal against the grant of interim injunction should not have been entertained. It was also argued that the learned Addl. Commissioner has referred in his judgment to A.I.R. 1934 Sindh 60 which is evidently erroneous for there is no citation like A.I.R. 1934 Sindh 60. The case reported on 60 commences on page 57 and is concluded on p.64. This is a criminal case and relates to a criminal conspiracy. The learned counsel for the opposite - party has stated that the lower appellate court has given a wrong citation and the correct citation is AIR 1944 Sindh 16. This is a case relating to gift for a pious purpose wherein it was held that an endowment or dedication by the donor of the building, he has specially constructed as a choultry and a bathing place for the use of Brahmins, is valid through not made by registered instrument. Sec. 212 of the Rajasthan Tenancy Act governs the grant of temporary injunction and appointment of receivers. Where it appears to the court that the property in dispute is in danger of being wasted, damaged or alienated it may issue a temporary injunction against the party intending to do so. The defendants contended before the trial court, a contention which has been repeated before us as well, that the plaintiff (plaintiffs in the other case) by digging a well in the land would be damaging or wasting it. We find ourselves unable to subscribe to this view. The construction of a well for the storage, supply or distribution of water for agricultural purposes has been defined as an improvement in sec. 5 (19) of Rajasthan Tenancy Act. The learned Additional Commissioner has in his judgment avoided calling the well a damage or waste and has observed that the construction of a well will give rise to complications. A temporary injunction can be granted only where the property is in danger of being wasted or alienated, or any party intends to remove or dispose of the property in order to defeat the ends of justice. It would thus be clear that the construction of a well in agricultural land is not an act which can authorise the court to issue a temporary injunction. Besides it may also be observed that the learned Assistant Collector after examining the revenue came to the conclusion that the plaintiff in one case and the plaintiffs in the other case were in prima facie possession. The learned Additional Commissioner has stated nothing about this view. But nevertheless has observed "that the appellants have made it a prima facie case of their possesion." The basis of this observation can be gathered neither expressly nor impliedly from the judgment. It is evidently an inference drawn without any premises whatsoever. The learned Additional Commissioner ought to have examined as to whether the trial court had assessed the facts property or not and whether the principles which should govern the grant of injunction were properly applied to the case or not. The learned Additional Commissioner strangely enough has not applied his mind to either of these facts. He has devoted a considerable part of his judgment to the examination of the plea of dedication and the admissibility of the dedication deed ; though he bad pointed out that these called for a detailed examinations and no final opinion could be expressed on those issue of facts and law. The learned Addl. Commissioner thus without examining as to whether the trial court exercised its discretion properly or not interfered with that discretion and passed an order which in its opinion should have been passed in the case. Evidently this is entirety a wrong approach. As pointed out above the grant of a temporary injunction is a matter of discretion. Unless that discretion has been properly exercised the appellate courts ordinarily should not interfere with that exercise. In the present case we find that looking to the Prima facie fact of possession the trial court held that the defendants ought to be restrained through a temporary injunction from interfering with the possession of the plaintiff, or plaintiffs. The appellate court has given untenable grounds for preventing the plaintiff from constructing the well. We, therefore, allow the appeal, set aside the order of the Additional Commissioner, Jodhpur ; dated 11 4 -1957 and restore that of the Assistant Collectors Bali dated 19.2.1957.