KESSO RAM Vs. RAMESHWAR

JUDGEMENT

(1.) THIS is a revision petition under Section 115 CPC against the judgment and order dated 17 -9 -1985 passed by the learned District Judge, Jhunjhunu in Civil Misc. Appeal No. 51/85 whereby he dismissed the Misc. Appeal against the order dated 10 -7 -1985 passed by the Munsif and Judicial Magistrate, Jhunjhunu under Order 39, Rules 1 and 2, CPC

(2.) THE petitioner filed a civil suit for issue of perpetual injunction in the court of Munsif and Judicial Magistrate, Jhunjhunu, wherein it was contended that there existed a way from village Hansari to village Dhanoori through Khasra Nos. 92, 91, 84, 72 and 69. This way also leads to Khasra No. 29 of petitioner Kesuram. Learned trial court appointed a Commissioner to inspect the site, who filed his report on 19 -11 -1984 and after considering the report and other documents on record, the application for temporary injunction filed by the petitioners was dismissed. Against this, an appeal was filed, which was also dismissed after hearing both the parties.

(3.) LEARNED Counsel for the non -petitioners Shri Sajjan Singh on the other hand has contended that two courts below have come to a finding that irreparable injury and balance of convenience do not exist in favour of the petitioners and, therefore, this Court should be slow in interfering with a concurrent finding of both the courts. It is also pointed out that one Tejaram brother of petitioner Kesooram had earlier filed the proceedings in the court of Assistant Collector, Jhunjhunu regarding declaration about the same way and and also prayed for issue of temporary injunction, which had been refused. It is also contended that in the report of the Commissioner it has been clearly mentioned that the alleged way does not exist at several places. It is stated in the report that the existence of way can be seen in Khasra Nos. 91 and 69 but not in other Khasra Numbers as mentioned in the plaint by the petitioners. Reliance has been placed on Hindustan Aeronautics v Ajit Prasad : (1972)ILLJ170SC , in which it was observed by the Apex Court that the High Court should not interfere even if the order is right or wrong or in accordance with law or not unless the lower courts have exercised their jurisdiction illegally or with material irregularity. In M.L. Sethi v R.P. Kapoor : [1973]1SCR697 , it was observed by the Apex Court that revisional powers of the High Court under Section 115 CPC are limited. The erroneous decision on a question of law reached by the subordinate court which has no relation to the question of jurisdiction of that court, cannot be corrected by the High Court under Section 115 CPC.