Shamsher Singh Thakur and Anr. Vs Rajesh Kumar and Ors.

By way of instant petition, the petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution of India to assail the order dated 30.03.2024 passed by learned District Judge, Sirmaur at Nahan in Civil Misc. Appeal No.9-CMA/14 of 2023 whereby the order dated 02.09.2023 passed by learned

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1 Whether reporters of print and electronic media may be allowed to see the order?

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Civil Judge, Rajgarh in CMA No.340/2018 in Civil Suit No. 86/1 of 2018 has been modified.

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Civil Suit No. 86/1 of 2018 pending on the files of learned Civil Judge, Rajgarh, District Sirmaur has been filed by respondents No. 1 and 2 against the petitioners and others in respect of the land comprised in Khata/Khatauni No.114min/270, Khasra Nos. 177, 179, 181 and 191 measuring 320.12 Sq. meters situated in Mohal Rajgarh-1, Tehsil Rajgarh, District Sirmaur, H.P. (for short, the suit land).

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The parties hereinafter shall be referred to by the same status as they hold before the learned trial Court.

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The suit has been filed by the plaintiffs for possession and mesne profit with a further decree for permanent prohibitory and mandatory injunctions. The plaintiffs claim themselves to be the co-owners of the suit land and the defendants are alleged to be the encroachers thereon. It is alleged that the defendants without any right, title or interest have clandestinely raised a five storey RCC structure on the suit land without the

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consent of the plaintiffs. On such premise, the decree for possession and mesne profit has been sought. Further, decree of mandatory injunction directing the defendants to demolish the structure raised by them and to handover the suit land to the plaintiffs, has also been prayed for.

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The defendants are claiming to be in permissive possession of the suit land. Their contention is that the original defendant No.3 in the suit namely Shanti Swarup had transferred 3 biswas and 5 biswas of land to one Pritam Singh for construction in the year 1981 and 1993 respectively. It is further stated that said Pritam Singh had raised construction of two houses in the year 1982 and 2003. The electricity meters were stated to have been installed in the name of Pritam Singh and his wife Niranjan Kaur, respectively. After the death of Pritam Singh his wife Niranjan Kaur is alleged to have executed an agreement to sell with respect to the suit land in favour of defendants in lieu of consideration of Rs.10,00,000/- and, thus, possession of the suit land is claimed to have been handed over to the defendants. They also claim that even Shanti Swarup had executed an agreement to sell with the defendants with respect to land

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measuring 16 x 20 feet in the month of May, 2015 on receipt of sale consideration to the tune of Rs.5,00,000/-. In this respect, the defendants claim to be in settled possession of the suit land. Their further case is that after being put into possession of the suit land, they have raised five storied structure on the suit land after demolishing the old house constructed by Pritam Singh.

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Along with the plaint, the plaintiffs also filed application under Order 39 Rules 1 & 2 CPC for interim injunction against the defendants with the prayer to restrain them from raising any further construction and from alienating or encumbering the suit land in any manner whatsoever.

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Learned trial Court allowed the application of the plaintiffs partly and restrained the defendants from alienating or encumbering the suit land till final disposal of the suit. The plaintiffs filed appeal under Order 43 Rule 1 (r) of CPC against the order passed by learned trial Court. The appeal of the plaintiffs has succeeded and learned Appellate Court vide impugned order, has restrained the defendants not only from alienating or

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encumbering the suit land, but also from raising any further construction thereon.

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I have heard learned counsel for the parties

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and have also gone through the records of the case carefully.

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The supervisory jurisdiction of this Court under Article 227 of the Constitution of India extends only to limited extent of interfering with or setting right the orders passed by Courts or tribunals which suffer from perversity or are found to be not serving the interest of justice.

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In Sadhana Lodh vs. National Insurance

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Company Ltd. And another, (2003) 3 SCC 524 , Hon’ble Supreme Court has held as under:

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“ 7 . The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under

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Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.”

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11. In Radhey Shyam & Another vs. Chhabi Nath

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and others, (2009)5 SCC 166 , the Hon'ble Supreme Court rendered the following exposition of law:-

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“31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.”

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Similarly, para-15 of the judgment passed by

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the Hon’ble Supreme Court in Garment Craft vs. Prakash Chand Goel (2022) 4 SCC 181 , reads as under:

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“ 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

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Court exercising supervisory jurisdiction does not act as a court of the first appeal to re-appreciate, reweigh the evidence or fact 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.”

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Thus, the above exposition of law makes it

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clear that this Court has restrictive and limited jurisdiction to interfere under Article 227 of the Constitution of India. Only grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice can be prevented by exercise of such jurisdiction. This Court is not to sit in appeal over the order passed by the Courts subject to its supervision. The

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opinion formed by the Courts or Tribunals cannot also be substituted unless the same is found to be perverse.

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Thus, what is required to be looked into by this Court is whether the Appellate Court has rightly interfered with the order passed by learned trial Court.

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Perusal of the orders passed by both the Courts as also the pleading of the parties and documents relied upon by them reveal that the plaintiffs were coowners of suit land which was part of a big chunk of land measuring 109.17 bighas. The above stated was Shamlat land for which land revenue was being paid by the right holders. The Shamlat lands were reverted back to the owners in the year 2004 after amendment in H.P. Village Common Land Vesting and Utilization Act. In this manner, the predecessor-in-interest of the plaintiffs had acquired the ownership and further the plaintiffs had also inherited the same to become the co-sharers.

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The defendants on the other hand have not been able to place on record any document of title in their favour. Their reliance is merely on the affidavits allegedly executed by Shanti Swarup in favour of Pritam Singh,

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agreement to sell allegedly executed by Niranjan Kaur in favour of the defendants and lastly another agreement to sell executed by Shanti Swarup in favour of the defendants.

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Both the Courts have found on facts that the earlier house of Pritam Singh and his family existed on the suit land and now the RCC structure raised by the defendants is there. Learned trial Court has found the possession of the defendants and their predecessor-ininterest to be permissive in nature.

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Learned Appellate Court though has affirmed that the possession of the defendants and their predecessor-in-interest has been long standing, nonetheless has held plaintiffs entitled for injunction to restrain the defendants from raising further construction on the premise that the defendants had not raised any plea or defence, which if proved, will establish the better right of defendants over the suit land than that of the plaintiffs. Learned Appellate Court concluded that such better title could be proved either by establishing the perfection of title by adverse possession or by proving

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existence of irrevocable licence. Since, none of these pleas were found to have been raised by the defendants, learned Appellate Court found the equity in favour of the plaintiffs and thus passed the impugned order.

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The nature of the reliefs sought by the plaintiffs appears to have escaped notice of learned trial Court. The suit was filed for possession of the suit land on the basis of title. The plaintiffs can be defeated in the suit in case defendants prove their better title. Mere permissive possession howsoever long will not be able to convert the right, if any, of the defendants into title. Thus, the learned Appellate Court cannot be said to have exceeded its jurisdiction in modifying the order passed by learned trial Court.

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Indisputably, as of today, only the RCC framed structure constructed by the defendants is standing on the suit land. By allowing them to raise further construction will involve expenditure which may affect the balance of equities in future. In case, the plaintiffs fail in their suit, the defendants can always be compensated by way of costs. On the other hand, in case the plaintiffs

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succeed, their rights, in all probabilities, are likely to suffer prejudice besides being led into multiplicity of litigation.

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Another fact that has been noticed by learned District Judge is that the defendants have raised construction without any permission or sanction from the local authority. This is also a relevant consideration for denying the defendants right to raise further construction at this stage of the suit.

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In result, I do not find any reason to interfere with the well-reasoned order passed by learned District Judge, Sirmaur at Nahan. Accordingly, the petition is dismissed, so also the pending application(s), if any.

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(Satyen Vaidya) Judge

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22^nd July, 2025 (GR)

Shamsher Singh Thakur and Anr. v. Rajesh Kumar and Ors.

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Shamsher Singh Thakur and Anr. v. Rajesh Kumar and Ors.

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