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2026 DAILYLAW 16864 (HP)

Durgi Devi v. Tej Ram

2026-03-30

Romesh Verma

body2026
JUDGMENT : Romesh Verma, J. The present petition arises out of the judgment dated 24.3.2021, as passed by the learned District Judge, Mandi, District Mandi, H.P., whereby the appeal preferred by the present respondents/defendants was allowed and the order dated 14.1.2020, as passed by the learned Civil Judge, Court No.2, Mandi, District Mandi, was set aside and consequently, the application filed by the petitioners under Order 39 Rules 1 and 2 CPC preferred for grant of temporary injunction against the respondents was ordered to be dismissed. 2. The brief facts of the case are the petitioner/plaintiff filed a suit for declaration and injunction under Sections 34 and 38 of the Specific Relief Act in the Court of learned Civil Judge, Senior Division, Mandi on 21.11.2019. It was averred in the plaint that the land comprised under Khewat Khatauni No. 264/364, Khasra No. 482, measuring 2-1-18 bighas, situated in Muhal Takoli, Tehsil Aut, District Mandi, is recorded under the ownership and possession of the plaintiff, defendants and proforma defendants, which entry regarding defendants/respondents showing them as joint co-owners in possession to the extent of ½ share is wrong, illegal, incorrect and contrary to the factual position. It was further averred that previously suit land was owned by the State of Himachal Pradesh, whereas S/Sh. Thanthi and Mathru were in possession of the same as non-occupancy tenants in equal shares. Later on, proprietary rights of the suit land were conferred upon them and mutation No. 36, dated 14.9.1966 to this effect was attested and they became absolute owners in possession of the suit land. Said Thanthi was issueless and died in the year 1982. After his death, his half share in the suit land was devolved upon Mathru being his sole legal heir (brother) and thus, Mathru became owner in possession of the entire suit land. 3. As per claim set up by the plaintiff/petitioner, Mathru died during the year 2004 and after his death, the suit land was inherited by the plaintiff and proforma defendant No.6 being the sole legal heirs and daughters of Mathru, who are now joint owners in possession of the entire suit land and along with proforma defendants No. 7 and 8. It was further averred that the defendants/respondents are not joint owners in possession of the suit land. It was further averred that the defendants/respondents are not joint owners in possession of the suit land. In the month of September, 2019 defendants/respondents started unlawful interference with the peaceful possession of the plaintiff and proforma defendant No.6 over the suit land and when confronted, the defendants/respondents disclosed that they are also joint owners in possession of the suit land as per revenue record, therefore, the plaintiff enquired into the matter and after collecting the revenue record came to know for the first time that the predecessor-in-interest of the defendants, namely, S/Sh. Vir Chand alias Vari Chand and Ram Rattan, in connivance with the then revenue officials/officers got share of Thanthi fraudulently transferred in their name through alleged false and fabricated Rapat Roznamcha No. 391, dated 2.8.1966 and got mutation No. 38, dated 15.9.1966/20.11.1966 entered and attested in their names behind the back and without knowledge of Thanthi. Therefore, it was prayed that the decree for declaration be passed in favour of the plaintiff and against the defendants by declaring that earlier Mathru remained sole and exclusive owner in possession of the entire suit land including share of Thanthi and after his death, the plaintiff and proforma defendant No.6 are owners in possession of the suit land after inheriting the suit land on the death of their father Mathru. Further, it was prayed that the alleged D.D. No. 391, dated 2.8.1966 and mutation No. 38 dated 20.11.1966 and subsequent revenue entries made on that basis qua the suit land be declared as null and void. 4. The suit was contested and resisted by the defendants/respondents by raising preliminary objections qua maintainability, suit being barred by provisions of Order 2 Rule 2 CPC, suppression of material facts, limitation, valuation etc. On merits, it was admitted that Thanthi was issueless and died in the year 1982. However, it was submitted that Thanthi had transferred his ½ share in the suit land on 2.8.1966 vide oral sale in favour of Bari Chand and his brother Ram Rattan for a sale consideration of Rs.800/- and possession thereof was also delivered on 2.8.1966 vide Rapat No. 391, dated 2.8.1966 having been entered in Rapat Roznamcha Vakyati to this effect by the Patwari Halqua at the instance of Thanthi. All the allegations as leveled in the plaint were refuted and the defendants sought dismissal of the suit. 5. All the allegations as leveled in the plaint were refuted and the defendants sought dismissal of the suit. 5. It was also submitted that the plaintiff and proforma defendant No.6 have no right to challenge the said sale after elapse of about 53 years. In the year 1966, the Transfer of Property Act was not applicable in the State of Himachal Pradesh and all transfers were effected by oral sale by making Rapat in Roznamcha Vakyati with Patwari of concerned Revenue Circle. Therefore, Vari Chand and Ram Rattan were bonafide purchasers of the suit land for consideration and they had paid full sale consideration to said Thanthi and thereafter Thanthi himself got Rapat No. 391, dated 2.8.1966 reported that he had received sale consideration and also delivered possession to Vari Chand and his brother Ram Rattan on the spot. Further, it was stated that Rapat No. 391, dated 2.8.1966 and mutation No.38 dated 26.8.1966 having been verified by Field Kanungo on 26.8.1966 and attested by A.C. 2nd Grade, Tehsil Sadar, District Mandi, on 20.11.1966 are legal and valid under the provisions of law, therefore, it was prayed that the suit filed by the plaintiff be ordered to be dismissed. 6. Along with plaint, the plaintiff/petitioner also filed an application under Order 39 Rules 1 and 2 CPC, praying therein that the defendants/respondents, their agents, servants and relatives be restrained from causing any sort of interference with the peaceful possession and enjoyment of the petitioners/defendants and from getting suit land partitioned from the revenue agency on the basis of the wrong revenue entries in their names till disposal of the suit. 7. The application was duly contested by the defendants/respondents refuting therein the claim of the plaintiff/petitioner. 8. The learned trial court vide its order dated 14.1.2020 allowed the aforesaid application and the parties to the lis were directed to maintain status quo qua nature, possession, construction and alienation of the suit property till final disposal of the main suit. 9. Feeling dissatisfied, the defendants/respondents preferred an appeal in the Court of learned District Judge, Mandi on 24.2.2020, which came to be allowed vide judgment dated 24.3.2021, as a result of which, order dated 14.1.2020, as passed by the learned trial court, was set aside and the application filed by the plaintiffs for temporary injunction was dismissed. 10. 9. Feeling dissatisfied, the defendants/respondents preferred an appeal in the Court of learned District Judge, Mandi on 24.2.2020, which came to be allowed vide judgment dated 24.3.2021, as a result of which, order dated 14.1.2020, as passed by the learned trial court, was set aside and the application filed by the plaintiffs for temporary injunction was dismissed. 10. The plaintiff/petitioner, feeling aggrieved with the judgment, as passed by the learned first appellate court, has approached this Court by filing the instant petition. 11. Mr. Gautam Sood, learned counsel appearing for the plaintiff/petitioner has contended that the impugned judgment as passed by the learned first Appellate Court is erroneous and not sustainable in the eyes of law, thus, is liable to be quashed and set aside. He has urged that the learned first appellate court has not appreciated real point in controversy, therefore, reasons, as assigned by the said Court, are liable to be quashed and set aside. He has also contended that in view of the provisions of Transfer of Property Act, the alleged oral sale is not permissible, therefore, no case is made out in favour of the defendants/respondents and the impugned judgment deserves to be set aside. 12. On the other hand, Mr. Sanjeev Kuthiala, learned Senior Advocate, duly assisted by Ms. Taman Sharma, Advocate, appearing for the defendants/respondents, has submitted that the learned first appellate court has rightly passed the impugned judgment after setting aside the order, as passed by the learned trial court. He has further submitted that in order to get relief of injunction, triplicate test of prima facie case, balance of convenience and irreparable loss has to be passed by the plaintiff. 13. I have heard the learned counsel for the parties and have also perused the case file. 14. Before coming to the factual matrix of the case, this Court will take into consideration exposition of law as laid down by the Hon’ble Supreme Court, while dealing with case(s) under Article 227 of the Constitution of India and the scope of interference by this Court in such matter(s), in Garment Craft vs. Prakash Chand Goel , 2022 (4) SCC 181 , wherein it was held as under: “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:- 6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” 15. The Hon’ble Supreme Court has held that the power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It has been held that supervisory jurisdiction is not to correct every error of fact or even a legal flaw, when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. 16. In view of the law as laid down by the Hon’ble Supreme Court (supra), this Court will deal with factual matrix of the case. 17. Relief of injunction under Order 39 Rules 1 and 2 is discretionary relief and in order to get the relief of injunction, triplicate test of prima facie case, balance of convenience and irreparable loss is required to be qualified by the plaintiff/petitioner. The learned trial court though has passed the order of status quo, however from the perusal of the case file, it reveals that the learned trial court has not touched aforesaid principles of law in its letter and spirit. 18. The learned trial court though has passed the order of status quo, however from the perusal of the case file, it reveals that the learned trial court has not touched aforesaid principles of law in its letter and spirit. 18. Merely the fact that the plaintiff/petitioner has challenged the revenue entries and has contended that the defendants/respondents are not joint owners in possession of the suit land since share of Thanthi was inherited by the plaintiff/petitioner and proforma defendant No.6, could not have formed basis of order, as passed by the learned trial court. It was directed that in order to ensure that right of either of the parties are not violated, the parties are directed to maintain status quo qua nature, possession, construction and alienation of the suit land. There was no discussion at all in the impugned order about the ingredients as laid down by the Hon’ble Supreme Court to get relief of injunction. 19. As regards the findings returned by the learned first appellate court, it has passed a detailed judgment by holding that that the revenue record showing oral sale of the suit land in the name of Vari Chand is being reflected on the basis of the mutation of Rapat Roznamcha, which was entered on 20.11.1966. 20. Long standing entries, which carry presumption of truth, certainly make out a prima facie case in favour of the defendants/respondents and not in favour of the plaintiff/petitioner, thus, the learned first appellate court has rightly come to the conclusion that merely said revenue entries have been challenged does not prove the case of the plaintiff/petitioner. 21. The revenue record prima facie shows that the defendants/respondents are joint owners in possession of the suit land by virtue of oral sale deed dated 2.8.1966 to the extent of ½ share and thereafter mutation has also been attested and since, then the defendants are coming in possession of the suit land. Therefore, the learned first appellate court after relying upon long standing entries has rightly come to the conclusion the plaintiffs have failed to show any prima facie case in their favour. Therefore, the learned first appellate court after relying upon long standing entries has rightly come to the conclusion the plaintiffs have failed to show any prima facie case in their favour. As noticed above, mutation of the oral sale is being reflected in the revenue record since long period, therefore, it cannot be said that the plaintiff has got an arguable case in her favour in order to get the relief of injunction, that too merely on the basis of the revenue entries being under challenge, which would not entitle the plaintiff to get any kind of relief in the attending facts and circumstances. 22. As far as submissions of the learned counsel for the petitioner are concerned that the oral sale, at the relevant time, was not permissible in view of the provisions of Transfer of Property Act, suffice it to refer the decision in Dasaundhi Ram & anr. Vs. Hans Raj, 1985 SLJ 293, more particularly paras 7 and 8 thereof, wherein it was held as under:- “7. Adverting to the second contention that the plaintiffs were bonafide purchasers of the land in dispute, it may be pointed out that at the relevant time the Transfer of Property Act was not applicable and an oral sale by mutation was permissible. An entry in the 'Roznamcha-vakiaty' regarding the oral sale was reflected at the instance of the land- owners on June 18, 1967. A mutation of sale was also attested in favour of the defendant in a general meeting. Simply because the subsequent sale in favour of the plaintiffs was made by a registered deed does not give a preferential right to the plaintiffs. 8. Under the circumstances, while agreeing with the view taken by the first appellate court as also by the learned Single Judge, there is no reason to doubt that the possession of the land in dispute had already been delivered to the defendant before the report 'Roznamcha- vakiaty' was made on June 18, 1967 pursuant to the oral sale. It was in the month of February, 1968, that the sale deed was executed in favour of the plaintiffs after the possession had been already delivered to the defendant pursuant to the oral-sale. As such the plaintiffs are supposed to have the knowledge of the oral sale. It was in the month of February, 1968, that the sale deed was executed in favour of the plaintiffs after the possession had been already delivered to the defendant pursuant to the oral-sale. As such the plaintiffs are supposed to have the knowledge of the oral sale. As pointed out earlier above, at the relevant time, it was not necessary to get a deed of sale executed and registered but an oral sale was also permissible. As such, the subsequent sale deed executed and registered in favour of the plaintiffs does not confer better rights on the plaintiffs. A sequence of events reveals that the plaintiffs were aware about the oral sale already made in favour of the defendant. The plaintiffs are also presumed to have the knowledge that the previous owners were not in possession were not in possession of the land in dispute. At any rate, it was required for the plaintiffs to find out the factual position. Any deliberate omission on their part does not entitle them to any benefit.” 23. In Udho vs. Ram Krishan , 2000 (2) SLJ 1219, this Court, held as under:- “11. So far oral sale is concerned, there is no scope of dispute that Section 54 of the Transfer of Property Act was made applicable to Himachal Pradesh, including District of Sirmour, by a Notification No. 17-13/66, Rev.-1 dated December 7, 1970. In the circumstances, oral sale of immovable properties in the District of Sirmour was permissible in the year 1968. The question No. (i) is accordingly answered.” 24. The oral sale in the present case pertains to the year 1966 and the provisions of Transfer of Property Act became applicable in the month of December 1970, therefore, the contention of the learned counsel for the plaintiff/petitioner is not sustainable in the eyes of law and the same is rejected. 25. In Dalpat Kumar vs. Prahlad Singh , (1992) 1 SCC 719 , the Hon’ble Supreme Court has held as under:- “5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non- interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” 26. In the present case, as rightly held by the learned first appellate court, triplicate test, as observed above, for getting relief of injunction has not been satisfied by the plaintiff/petitioner, therefore, the learned first appellate court has rightly determined point in controversy. In the present case, as rightly held by the learned first appellate court, triplicate test, as observed above, for getting relief of injunction has not been satisfied by the plaintiff/petitioner, therefore, the learned first appellate court has rightly determined point in controversy. Long standing entries since 1966 showing the defendants/ respondents in possession of the suit land, is a matter of trial, however for the purpose of grant of temporary injunction, it cannot be said that the plaintiff/petitioner has got prima facie case in her favour. Therefore, applying principles as laid down by the Hon’ble Supreme Court (supra), this Court does not find any infirmity or error in the impugned judgment as passed by the learned District Judge. 27. In view of aforesaid discussions and for the reasons stated hereinabove, the instant petition being devoid of any merit is dismissed, so also the pending application (s), if any, leaving the parties to bear their own costs. 28. Before parting, it is made clear that any observation made here-in-above shall not be taken as an expression of opinion on the merits of the main case and the same shall be adjudicated upon uninfluenced by any observation made here- in-above, which are only for the purpose of the instant petition.