Girdhari Lal vs Mahesh Chandra Joshi

1) By means of present writ petition, the petitioner seeks following relief, among others:

(i) Issue a writ, order or direction in the nature of certiorari calling the record of the case and to quash the judgment dated 26.11.2016 (Annexure 1 to the writ petition) passed by I Addl. District Judge, Haldwani, District Nainital, in Misc. Civil Appeal no. 13 of 2016, Girdhari Lal vs Mahesh Chandra Joshi and further, the order dated 23.04.2016 (Annexure 2 to the writ petition) passed by Civil Judge (Jr. Div.), Haldwani, District Nainital in Civil Suit no. 39 of 2015, Girdhari Lal vs Mahesh Chandra Joshi and further, to allow the temporary injunction application filed by the plaintiff.

2) Plaintiff-petitioner filed a suit against the defendant-respondent for permanent prohibitory injunction alongwith an application under Order 39 Rule 1 & 2 C.P.C. seeking temporary injunction. The same was dismissed by the trial court vide order dated 23.04.2016. Aggrieved against the same, plaintiff-petitioner filed misc. civil

appeal, which was dismissed by learned I Addl. District Judge, Haldwani vide order dated 26.11.2016.

3) The contention of plaintiff-petitioner before the trial court was that he was a poor landless person and was living over the disputed property on the basis of residential lease granted by the State Government wherein previously there was a hut which was destroyed in fire and a new construction was being raised when defendant-respondent had threatened the plaintiff-petitioner with dire consequences.

4) It is the submission of learned counsel for the petitioner that defendant has no concern with the plot of the plaintiff. A copy of khautani pertaining to khasra no. 53M, Village Isai Nagar no. 1 was filed wherein area admeasuring 0.0640 Hectare is recorded as Abadi and area admeasuring 0.148 Hectare is recorded as Rasta. There is an irrigation canal (Gool) in north which demarcates Village Isai Nagar no. 1 from Village Jaipur Padli. A copy of map / plot no. 4 in favour of Remendra Singh was filed wherein towards the eastern side residence / abadi of plaintiff has been shown. In south of land of wife of defendant, there exists the residential strip / land allotted to different persons long back and the land of wife of defendant is not touching and / or having egress and ingress towards south, i.e., the road situated in Village Isai Nagar no. 1 as in between the land of wife of defendant and the road in the south, there exists residential area allotted to landless persons belonging to scheduled caste. Learned

counsel for the petitioner contended that learned trial court has discarded the documentary evidence filed by the plaintiff with regard to allotment of plots on the ground of being photocopies, ignoring the fact that during the stage of temporary injection, mini trial is not warranted and documentary evidence in the form of photocopies have to be considered. It is also contended that learned trial court has ignored actual physical possession of plaintiff over the disputed land, which fact has not been denied by the defendant. Learned court below had overlooked the fact that with the change in time, boundaries of the property always change. Learned trial court has gone into the merits of the case as if the proceedings were in trial stage ignoring the law that prima facie case is not to be confused with prima facie title and person in actual physical possession is entitled to retain the same. It is also submitted by learned counsel for the plaintiff-petitioner that learned lower appellate court had concurred with the findings, conclusions of learned trial court without applying its own independent, judicious mind and committed the same mistakes as was done by learned trial court ignoring the documentary evidence on the ground of being photocopies.

5) The trial court in the order impugned has stated that the plaintiff has concealed the material facts and has not come to the court with clean hands. The land in question is in the ownership of the State Government being a land of Category 6(2), but the plaintiff has not made the State a necessary party and, therefore, the suit as not maintainable.

6) While discussing the three ingredients namely, prima facie case, irreparable loss and balance of convenience, the trial court was of the view that photocopy of the patta has been filed, which is not admissible in evidence and the patta relates to other pattedars. Neither khasra number, nor area or boundaries there of, has been mentioned in the said patta, besides being inadmissible in evidence.

7) The boundaries given in the photocopy map of the patta filed by the plaintiff did not match with the boundaries of suit land. In fact the suit property is public property wherein the plaintiff is in unauthorized possession. He is the trespasser. S.D.M. Haldwani has also directed such encroachment to be removed from such property. The trial court was, therefore, of the opinion that no prima facie case was made out in favour of the plaintiff-petitioner. The other ingredients of irreparable loss and balance of convenience were also not found in favour of the plaintiff- petitioner and, therefore, the application for grant of temporary injunction was dismissed by a reasoned order.

8) The same was challenged in misc. civil appeal. The lower appellate court has categorically given a finding that some interpolations were made by the plaintiff- petitioner in the copy of patta, which was given to him. He continued to live as trespasser in Village Isai Nagar.

9) In para 21 of the order, the lower appellate court has mentioned that the appellant (petitioner herein)

admitted, during the course of arguments before the lower appellate court, that he constructed a hutment only in 400- 500 sq. ft. land, whereas he wrongly mentioned himself in the plaint to be in possession of 2255 sq. ft. land. Not finding enough reasons to interfere, the lower appellate court affirmed the order passed by the trial court vide order dated 26.11.2016 and hence present writ petition.

10) The lower appellate court has also assigned cogent reasons for coming to such a conclusion.

11) This Court is agreeable to the submission of learned counsel for the petitioner that the trial court is not expected to conduct the mini trial while deciding application under Order 39 Rule 1 & 2 C.P.C. This Court is also agreeable to the submission of learned counsel for the petitioner that prima facie case is not to be confused with prima facie title. But, at the same time, this Court is agreeable to the reasons which have been assigned by two courts below, who have given concurrent findings. However, this Court agrees with the submission of learned counsel for the petitioner that photocopy of any document can be looked into at the stage of deciding temporary injunction application.

12) Learned counsel for the petitioner, further, submitted that the petitioner is in possession of the suit property, even if he is a trespasser. But, at the same time, this fact cannot be ignored that the petitioner has not impleaded the State of Uttarakhand as necessary party in the suit.

13) Concurrent findings of the two courts below can be upset by this Court only on the ground of perversity, which means ''outrageous defiance of logic''. Irrationality and perversity are recognised grounds of judicial review which is available on three grounds -illegality, irrationality and procedural impropriety.

14) The orders impugned, in the humble estimation of this Court, are not so unreasonable, absurd or perverse that no reasonable man could have arrived at it and, therefore, not interferrable. Finding cannot be said to be perverse unless some relevant evidence is not considered or certain inadmissible material is taken into consideration or is entirely against the weight of evidence.

15) The narrow inspection hole through which the trial court was expected to decide temporary injunction application was within the four-corners of Order 39 Rule 1 & 2 C.P.C., i.e., whether a prima facie case is made out; whether irreparable loss will be caused to the plaintiff and in whose favour the balance of convenience will be. Judging from the aforesaid yardstick, this Court is of the considered opinion that no interference is called for in the reasoned orders impugned. The writ petition, therefore, fails and is dismissed.