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Judgment
R.V. Ghuge, J.—Heard. Rule. Rule made returnable forthwith and heard finally with the consent of parties.
The petitioners are aggrieved by the interlocutory order dated 17-03-2012 passed by the Trial Court below Exhibit 6 vide which temporary injunction has been refused to the petitioners. The said interlocutory order had been challenged in M.C.A. No. 16 of 2012 which has also been rejected by the appeal Court by its judgment dated 12-03-2013.
In this Writ Petition preferred by the petitioners, by an order dated 07-05-2013 passed by this Court, the parties were directed to maintain status-quo in respect of the suit property. The said interim order has been continued and it protects the petitioners till date.
Respondent No. 1 has preferred Civil Application No. 8767 of 2014 praying that the ad-interim order granted to the petitioners be recalled, the petitioners be punished for defying the order of this Court 07-05-2013 and Contempt proceedings be initiated against the petitioners. The said Civil Application is heard along with this petition.
Shri V.D. Sapkal, the learned Advocate on behalf of the petitioners submits as under:-
a] The petitioners Kisan s/o Radhaji Gajare (Kisan in short) and Govind s/o Radhaji Gajare (Govind in short) are in possession of land Gut No. 639 to the extent of 70 and 71 R respectively.
b] Respondent No. 1 Bhalchandra had filed a tenancy case before the Awwal Karkoon, Kopergaon (Tenancy Court) seeking possession of the suit land as the tenant Bhikaji Radhaji Gajare- respondent No. 8 (Bhikaji in short) was a defaulter and had not paid rent.
c] The tenancy case was allowed by order dated 10-05-2007.
d] Kisan and Govind along their brother Bhausaheb Radhaji Gajare (Bhausaheb in short) filed tenancy appeal No. 2 of 2007, which was partly allowed and the matter was remanded back to the authorities.
e] Bhalchandra preferred revision No. 25/B/2008/AN before the Maharashtra Revenue Tribunal (M.R.T. in short).
f] By order dated 19-03-2011, the M.R.T. partly allowed the revision petition and held that Kisan and Govind were neither tenants nor sub tenants. It was concluded that the tenancy Court cannot grant any relief against trespassers and remedy to the land-lord Bhalchandra is available against Kisan and Govind by filing a civil suit.
g] In view of the observations, respondent No. 4-Circle Officer issued notice dated 29-08-2011 to the petitioners directing them to hand over possession of land.
h] The petitioners Kishan and Govind filed Writ Petition No. 6821 of 2011 before this Court which was allowed on 18-11-2011 and liberty was granted land-lord Bhalchandra to pursue any other remedy available to him in law for recovery of possession.
i] Since Bhalchandra tried to disturb the possession of Kisan and Govind, they filed R.C.S. No. 10 of 2012. Temporary injunction application was rejected by order dated 17-03-2012, impugned in this petition.
j] Being aggrieved, Kisan and Govind filed M.C.A. NO. 16 of 2012 which was rejected by the appeal Court by judgment dated 12-03-2013, which is impugned in this petition.
k] In the 7/12 extract, the name of the land-lord is mentioned as Bhalchandra. The name of Bhikaji is shown as a tenant. The names of Kisan, Govind and Bhausaheb are also shown to be in possession of parts of the land.
l] The tenancy proceedings filed by Bhalchandra had arrayed Bhikaji as well as Govind, Kisan and Bhausaheb as respondents.
m] By the judgment dated 10-05-2007, the tenancy Court directed the respondents to hand over the possession after appeal period and pay dues of rent.
n] By judgment dated 30-06-2008, the Tenancy Appeal Court had remanded the matter back to the Tenancy Court for adjudication.
o] The M.R.T., in its judgment dated 19-03-2011 concluded that the tenancy against Bhikaji has been validly terminated by the land-lord and no directions can be issued against Kisan, Govind and Bhausaheb as they are neither tenants nor have they claimed any tenancy rights against Bhalchandra.
p] Kisan and Govind have neither claimed any tenancy rights, nor have they been held to be defaulters as against Bhalchandra.
q] The notice dated 29-08-2011 issued by the Circle Officer, Rawande has been set aside by this Court by order dated 18-11-2011 in Writ Petition No. 6821 of 2011 filed by Kisan and Govind.
r] Bhikaji has accepted the verdict of the Tenancy Court, the Appeal Court and the M.R.T. He has, therefore, not approached this Court.
s] The High Court has concluded in Writ Petition No. 6821 of 2011 that Bhalchandra can take possession of the land from Bhikaji.
t] The impugned order on the temporary injunction application Exhibit 6 in S.C.S. NO. 10 of 2012 is based on a misconception. Therefore, rejecting the temporary application indicates non application of mind by the Civil Court.
u] Kisan and Govind may be trespassers, but, they cannot be dispossessed of the land without following the due process of law.
v] Since Kisan and Govind are in possession, temporary injunction should have been granted to them.
w] The Civil Court while granting temporary injunction is only required to see whether the applicant is in possession of the suit land. When Kishan and Govind were in possession of the suit land, the temporary injunction application should have been allowed.
x] Kishan and Govind have still not been declared as trespassers by any Court of law.
y] Bhalchandra has failed to prove that Kisan and Govind have been dispossessed.
z] Even if it is presumed that Kisan and Govind have been dispossessed, the same would tantamount to an unlawful dispossession by Bhalchandra.
aa] The errors committed by the Trial Court were not noticed by the appeal Court, which committed a similar error by not appreciating the facts of the case in their proper perspective.
ab] This Court has protected the petitioners Kisan and Govind from 07-05-2013 and the same protection be continued till the trial in R.C.S. No. 10 of 2012 is completed.
ac] The Writ Petition be, therefore, allowed.
Shri S.D. Kulkarni along with Shri Sanket S. Kulkarni, learned Advocates for the respondents submitted as under:-
a] The supervisory and Writ jurisdiction of this Court is narrow and limited. The petitioner is before this Court on an interlocutory order, which does not call for any interference.
b] The entry in the 7/12 extract is an aberration and cannot overwhelm conclusions drawn by competent authorities vested with jurisdiction under the law.
c] The tenancy case was allowed by order dated 10-05-2007.
d] Bhikaji was alone recorded as a tenant in the revenue records.
e] The petitioners Kisan and Govind have been held to be trespassers.
f] It is concluded by the tenancy Court that Kisan and Govind did not participate in the proceedings despite notice and chose to remain absent.
g] Bhikaji was held to be the only tenant who was in possession of the entire land Gut No. 639.
h] The documents before the tenancy court established that Bhikaji was cultivating the land on rent. The Tenancy Appeal Court''s judgment has been quashed and set aside by the M.R.T., in the revision petition filed by Bhalchandra, by judgment dated 19-03-2011.
i] The M.R.T. concluded that Kisan and Govind were arrayed as respondents before the Tenancy Court and Tenancy Appeal Court only because their names were shown in the 7/12 extract.
j] There is no record about any transaction between Kisan, Govind and the land lord-Bhalchandra. The order passed by the Tenancy Court had become final against Bhikaji.
k] There is no pleading by Kisan and Govind that they have any legal right or interest in any part of the suit land.
l] Kisan and Govind have also not laid any claim towards tenancy rights in respect of any portion of the suit land.
m] The rent was being paid by Bhikaji alone to the land lord Bhalchandra and since, later on, he become a defaulter, he was directed to be evicted.
n] Since there was no claim of tenancy rights by Kisan and Govind against Bhalchandra, there was no jurisdiction for the Tenancy Court to hold any enquiry for deciding a non-existing issue between Bhalchandra and the petitioners.
o] The Tenancy Court has, therefore, rightly not passed any order against Kisan, Govind and Bhausaheb who are real brothers of Bhikaji.
p] The Tenancy Court and the M.R.T. has rightly concluded that Bhalchandra can initiate appropriate proceedings if required against Kisan, Govind and Bhausaheb.
q] The M.R.T. concluded that the tenancy of Bhikaji had been validly terminated by Bhalchandra and as a land lord, was entitled to recover the possession of the suit land from Bhikaji along with arrears and interest.
r] The Circle Officer relying upon the judgment of the Court (M.R.T.) issued notices to Bhikaji, the petitioners Govind, Kisan and Bhausaheb since the names of these four persons has been a part of the litigation throughout.
s] The notice dated 29-08-2011 so issued was for directing the four to hand over the possession of the land to Bhalchandra.
t] Kisan, Govind and Bhalchandra challenged the said notice in Writ Petition No. 6821 of 2011 before this Court.
u] This Court by its judgment dated 18-11-2011 concluded that the Circle Officer should recover the possession of the land from Bhikaji alone and the impugned notice dated 19-03-2011 could be executed only to his extent.
v] This Court also observed that the land in possession of Bhikaji had to be handed over to the land lord- Bhalchandra.
w] Bhikaji was holding entire possession of the land according to Bhalchandra.
x] This Court observed that the land lord Bhalchandra was at liberty to resort to any other remedy as may be available to him to take the possession from the petitioners if deemed necessary.
y] The contention of Kisan and Govind that the Circle Officer intimidated them and has handed over the entire possession of the suit land to Bhalchandra, is a misleading statement.
z] The Circle Officer had in fact carried out a proper Panchanama with regard to Gut No. 639 in the presence of the panchas as well as Bhikaji and Bhalchandra. Kisan and Govind intentionally did not remain present in order to project a picture that possession has been unlawfully taken.
aa] By drawing the panchanama, Bhikaji handed over the peaceful possession of the entire land to Bhalchandra and the said land admeasuring 2 H. 82 R. is now in the exclusive possession of Bhalchandra.
ab] A Tabe Pawati was also drawn in the presence of the Circle Officer and has been signed by Bhikaji as well as Bhalchandra. The entire land has been handed over to Bhalchandra which is evidenced by the Tabe Pawati.
ac] The Temporary Injunction application is a brazen act at the hands of Kisan and Govind in an attempt to mislead the Trial Court and hoodwink the law.
ad] Despite the efforts taken by the petitioners before the Trial Court in R.C.S. No. 10 of 2012 while arguing the Temporary Injunction application Exhibit 6, they stood sufficiently exposed which is evident from the impugned order.
ae] The impugned order runs into ten pages. The Trial Court has dealt with every contention of the petitioners and has rightly rejected the application.
af] The panchanama prepared by the circle officer and the Tabe Pawati clearly evidence the fact that the possession of the entire land in Gut No. 639 admeasuring 2 H. 82 R. was handed over to Bhalchandra.
ag] The petitioners failed before the Trial Court in establishing their possession even to the extent of their alleged area of land mentioned in the 7/12 extract.
ah] The Trial Court has taken an over all view of the matter and refused to grant injunction to the petitioners.
ai] The Misc. Civil Appeal No. 16 of 2012 filed by the petitioners seeking temporary injunction, has been rightly rejected.
aj] After considering the contentions set out by the litigating parties, the appeal Court dismissed the appeal by holding that the Panchanama prepared by the Circle Officer and the possession receipt (Tabe Pawati) are statutory documents having a presumptive value and are indicators of handing over of possession to Bhalchandra.
ak] The appeal Court noted though the petitioners have disputed every contention of Bhalchandra, the possession receipt and the Panchanama indicate that Bhikaji had handed over the entire land admeasuring 2 H. 82 R. to Bhalchandra.
al] Bhikaji has accepted the verdicts of the various authorities and has, therefore, not challenged any order before this Court.
am] Just because another view is possible, would not mean that the impugned order passed by the Trial Court and judgment of the Appeal Court are perverse.
I have considered the submissions of the rival parties and I have gone through the petition paper book in details. It has been consistently concluded by the Tenancy Court, and by the M.R.T. that Kisan and Govind are neither claiming any tenancy rights nor are they making any other claim against Bhalchandra. Their only contention is that if it is held that they are either trespassers or strangers to the property, they cannot be dispossessed except by following the due process of law.
The Circle Officer after carrying out the Panchanama, has recorded that the entire land was in possession of Bhikaji and the same has been handed over to Bhalchandra on 29-12-2011. The Tabe Pawati evidences the fact that possession of the entire land has been handed over by Bhikaji to Bhalchandra. There is nothing to indicate that Bhikaji had handed over only a portion of the land to Bhalchandra. It is equally noteworthy that Bhikaji is the real brother of Kisan, Govind and Bhausaheb.
The observations of this Court in Writ Petition No. 6821 of 2011 are only to the extent that the notice issued by the Circle Officer could not have been implemented against Kisan and Govind, as there is no order by the Tenancy Court or the M.R.T. against them. This conclusion of this Court neither fortifies the claim of the petitioners that they are in possession of the land to the extent of 70 and 71 R respectively, nor does it indicate that Bhikaji was in possession of only 71 R.
Kisan and Govind have conspicuously remained absent before the Tenancy Court. As such, for the present the dispute appears to be that Kisan and Govind claim possession over 70 R and 71 R land whereas the Panchanama dated 29-12-2011 and the Tabe Pawati indicates that Bhikaji himself has handed over the entire land admeasuring 2 H. 82 R. to Bhalchandra. Nevertheless, this dispute can be gone into by the Trial Court while dealing with R.C.S. No. 10 of 2012 which is for final hearing before the Trial court.
I have gone into the various observations made by the Tenancy Court in its judgment dated 10-05-2007, the judgment of the Appeal court dated 30-06-2008 which has been quashed and set aside, the judgment of the M.R.T. dated 19-03-2011 and the oral judgment of this Court dated 18-11-2011 in Writ Petition No. 6821 of 2011.
Taking an over all view of the matter with due circumspection, I do not find that the impugned order dated 17-03-2012 of the Trial Court refusing temporary injunction to the petitioners, can be held to be perverse or illegally. Similarly, the impugned judgment of the Appeal Court dated 12-03-2013 also needs no interference.
The jurisdiction of this Court and the extent to which an interference is warranted under its supervisory and writ jurisdiction, has been dealt with by the Apex Court in the case of Syed Yakoob Vs. K.S. Radhakrishnan and Others, (five Judges Bench). While dealing with the scope and ambit of this Court''s jurisdiction, the Apex Court has held in paragraph 7 and 8 as under:-
The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque ), Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, , and Kaushalya Devi v. Bachittar Singh.
It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of a the legal provision which is alleged to have been misconstrued or contravened."
The Apex Court once again dealt with this issue in the case of Surya Dev Rai Vs. Ram Chander Rai, reported at 2003(6) SCC 682, has held in paragraph Nos. 38 (1 to 9) and 39, as under:-
Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-
(1) Amendment by Act No. 46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.
Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where ''a stitch in time would save nine''. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge".
In the light of the above, I do not find that the impugned orders can be termed as perverse or erroneous. The Writ Petition is devoid of merit and is, therefore, dismissed. Rule is discharged.
In view of the disposal of this Writ Petition, the Civil Application No. 8767 of 2014 does not survive and same is disposed off accordingly.