2025 INSC 9
SUPREME COURT OF INDIA
(HON’BLE C.T. RAVIKUMAR, J. AND
HON’BLE SANJAY KAROL, JJ.)
AJAY SINGH
Petitioner
VERSUS
KHACHERU
Respondent
Civil
Appeal Nos. OF 2025 (Arising out of Special Leave Petition(Civil) Nos.
34407-34408 of 2013)-Decided on 02-01-2025
Civil
High Court not to
interfere in Concurrent finding of facts except in cases of jurisdictional
excess or perversity
Constitution of India, Article
226 - Writ Jurisdiction - Interference with concurrent findings of fact - Reappreciation of Evidence -
Jurisdictional Limits - The Supreme Court examined the High Court’s
interference with concurrent findings of fact made by revenue authorities
regarding the classification of land as Johad (pond) rather than Oosar. The
Court reiterated that the High Court, while exercising writ jurisdiction under
Article 226, cannot reappraise evidence or substitute its findings for those of
the authorities below except in cases of jurisdictional excess or perversity.
Thus, the High Court's decision to set aside the authorities' concurrent
findings was deemed erroneous.
(Para
17)
Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950 - Section 198(4) - Land Patta - Fictitious
Entries - The
Supreme Court addressed the validity of a patta and the resulting entries in
revenue records. The Court noted that the Additional District Magistrate found
the alleged patta for Khasra No. 103 to be fictitious due to the absence of an
allotment file, leading to the cancellation of the patta. The findings
underscored the importance of substantiating alleged land rights through
authentic documentation, emphasizing that mere assertions without supporting
records cannot cloud the legitimacy of established revenue classifications.
(Para
5)
Code of Civil Procedure, 1908 – Order
39 Rule 13 - Permanent Injunction - Review of Civil Orders - Ex-parte Decree -The Supreme
Court observed that a permanent injunction granted by the Civil Judge to the
appellant, which prohibited the respondent from interfering with the disputed
land as it served a public purpose, was improperly nullified by the High Court.
It noted that the High Court dismissed the injunction merely based on the
outcome of revenue proceedings without considering the procedural integrity and
substantive nature of the ex-parte decree, which had been based on findings of
fact established in earlier adjudications.
(Para
23)
Right to Use Land - Public
Necessity -
Community Rights - The Supreme Court reaffirmed the community’s right to use
the disputed land as a Johad (pond) for local needs, emphasizing that such land
should not be misappropriated for private purposes. The judgment highlighted
the significance of protecting community resources and the responsibilities
held by administrative authorities to uphold these rights, reinforcing the
principles of natural justice within the framework of land use disputes.
(Para
22)
JUDGMENT
Sanjay Karol J. :- Leave granted.
2.
The present appeals have been preferred against the judgment and order dated
13th May, 2013[Impugned order]
in Civil Review Petition No.118411 of 2013 in Writ Petition (C) No.9192 of 2007
and the final order and judgment dated 17th January, 2013 in Writ Petition (C)
No.9192 of 2007[Impugned Judgment]
passed by the High Court of Judicature at Allahabad, whereby the judgment and
order dated 27th August, 2004 passed by the Additional District
Magistrate/Additional Collector (City), Ghaziabad, in Case No.05 of 2003-04,
against the order dated 13th September, 2006 passed by the Additional
Commissioner, Meerut, in Revision No.135 of 2003-04 and against the order
dated 29th December, 2006 passed by the Additional Commissioner in Review
Application in Revision No.135/2003-04, was set aside. The Civil Review
Petition No.118411 of 2013[Impugned
Order] preferred by the respondent herein was dismissed vide order dated
13th May, 2013.
3.
The factual matrix of the case is as follows: -
This dispute relates to Khasra
No.103 (earlier known as Khasra No.84) (hereinafter referred to as “disputed
land”). In 1970, the disputed land was recorded as ‘Johad (Pond)’ in the
Revenue Records. In 2003, One Khacheru (respondent herein) asserted a right
over the disputed land, citing the alleged patta for Khasra No.103, as per the
revenue records of the year 1981-82. One Ajay Singh (appellant herein) filed an
application under Section 198(4) of the U.P. Zamindari Abolition and
Land Reforms Act, 1950, asserting that the disputed land was Johad (Pond)
before the consolidation operation was initiated rather than the
"Oosar"[In some other places, the
record spells this as ‘Usar’] land and the said land was excluded
from the consolidation scheme as it served as a water reservoir, used by the
villagers to provide water for their cattle and other usage.
4.
It was contended by the respondent before the Additional District
Magistrate/Additional Collector, while relying on the alleged patta based on
the revenue entries of the year 1981-82, that the disputed land was allotted in
his name as Bhumidhar, 22 years ago and the disputed land was not Johad (Pond)
instead, was an “Oosar” land, which has acquired its current depth as a result
of digging out the mud for use. Further, it was contended that such
objections of the appellant were time-barred.
5.
The Additional District Magistrate/Additional Collector, Ghaziabad, vide order
dated 27th August, 2004 examined the evidence on record, considering the sole
issue of whether the alleged patta for Khasra No.103 is false and the entries
in Khatauni on the basis of the said patta, are fictitiously made. It was concluded
that according to the report of the Tehsildar, no allotment file for the
alleged patta is available in the Tehsil Office, and though the alleged patta
is claimed to have been allotted in 1981 but the allotment register shows it to
be made in the year 1978-79. Therefore, the entries made in the Khatauni are
fictitious, and the same were not proved by the respondent. Further, it was
ordered that the revenue entries be corrected and the alleged patta be
considered as cancelled.
6.
Aggrieved by order dated 27th August, 2004, the respondent filed a Revision
Petition before the Appellate Authority, i.e., the Additional Commissioner,
Meerut, which was dismissed vide order dated 13th September, 2006, upholding
the findings of the authority to the effect that the entries were fictitious
and the alleged patta in favour of the respondent, was rightly cancelled by the
Collector as a consequence thereof.
7.
The appellant also initiated proceedings, being Original Suit No.372 of 2003
before the Civil Judge (Junior Division) at Ghaziabad, seeking a permanent
injunction against the respondent regarding the disputed land. The suit was
proceeded ex-parte on default of the appearance of the respondent. On 7th
November,
2005, the Civil Judge passed an ex-parte decree in favour of the appellant,
permanently prohibiting the respondent from disturbing the villagers’ right to
use the land as a Johad (pond) or interfering with its use as a water
reservoir.
8.
The respondent preferred a review application against order dated 13th
September, 2006, passed by the Additional Commissioner in Revision No.
135/2003-04. However, the Additional Commissioner, Meerut, vide order dated
29th December, 2006, dismissed the review application upholding the factual
findings recorded by the authorities below.
9.
Being dissatisfied and aggrieved by the judgments and orders passed by the
authorities, as recorded in the preceding paragraphs, the respondent preferred
Writ Petition No.9192 of 2007 before the High Court. The order passed therein
is impugned in these proceedings.
10.
The High Court allowed Writ Petition No.9192 of 2007 by order dated 17th
January, 2013 and set aside the orders of the Additional District Magistrate/
Additional Collector and Additional Commissioner which were based on the
concurrent findings of law and facts, and observed that the disputed land was
mistakenly recorded as “Johad (pond)”, in revenue records due to some
confusion, while it should have been treated as “Usar”.
11.
The appellant herein filed Civil Review Petition No.118411 of 2013 against the
judgment and order dated 17th January, 2013 in Writ Petition No.9192 of 2007 on
the ground that the respondent suffered an ex-parte decree
permanently restraining him from interfering with the disputed land passed
by the Civil Judge (Junior Division) at Ghaziabad.
12.
The High Court dismissed the Civil Review Petition stating that the decree
passed by the Civil Judge (Junior Division) is based on the findings of order
dated 27th August, 2004 passed by the Additional District Magistrate/Additional
Collector in Case No.05 of 2003-04, which was set aside vide judgment dated
17th January, 2013 meaning thereby that since the basis of the order of the
Civil Judge no longer stands, the said decree also becomes non est in law.
13.
The principal question that falls for our
determination, in this case, is whether the concurrent findings recorded by the
Additional District Magistrate/ Additional Collector and Additional Commissioner
that the disputed land was recorded as a Johad (Pond) in the revenue record,
could have been interfered by the High Court in a writ jurisdiction
under Article 226 of the Constitution of India.
14.
In the adjudication of this question, we find that the record speaks to the
fact that the document annexed as Annexure P-1 in the present appeals stated
that in 1970, the disputed land was found to be Johad (Pond) at serial No.257,
mentioned as Khasra No.84 in revenue records.
15.
The authorities below had concurrently held that as per the revenue record, the
disputed land had been shown as Johad (Pond). Further, it was held that a valid
patta was never executed in favour of the respondent and that there was no
record of allotment entry regarding the said patta. No such entry was available
in Tehsil in this regard. Thereafter, they further observed that the entries
made in Khatauni 1385 to 1390 Fasli are fictitious as Lekhpal and Kanungo
signed it on contradictory dates, i.e., 06.08.1982 and 06.05.1982, respectively.
16.
The said finding of facts was reversed by the High
Court in writ proceedings only on the ground that at all relevant times, the
disputed land was recorded as 'Oosar’ in the revenue records and under some
confusion it was entered as Johad (Pond). The High Court further said that the
writ petitioner could not be responsible for the non-availability of allotment
files in the tehsil office.
17.
It is a well-established principle that the High Court,
while exercising its jurisdiction under Article 226 of the
Constitution of India, cannot reappreciate the evidence and arrive at a finding
of facts unless the authorities below had either exceeded its jurisdiction or
acted perversely.
18.
On the said settled proposition of law, we must make reference to the judgment
of this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram[(1986) 4 SCC 447]. The relevant portion
thereof reads as under:
“16. … It is well settled that
the High Court can set aside or ignore the findings of fact of an appropriate
court if there was no evidence to justify such a conclusion and if no
reasonable person could possibly have come to the conclusion which the courts
below have come or in other words a finding which was perverse in law. This
principle is well settled. In D.N. Banerji v. P.R.
Mukherjee [(1952) 2 SCC 619] it was laid down by this court that
unless there was any grave miscarriage of justice or flagrant violation of law
calling for intervention it was not for the High Court under Articles
226 and 227 of the Constitution to interfere. If there is
evidence on record on which a finding can be arrived at and if the court has
not misdirected itself either on law or on fact, then in exercise of the power
under Article 226 or Article 227 of the Constitution, the
High Court should refrain from interfering with such findings made by the
appropriate authorities. …”
(Emphasis
Supplied)
19.
The above said proposition of law was reiterated in Shamshad Ahmad v.
Tilak Raj Bajaj[(2008) 9 SCC 1] ,
wherein it was observed that:
“38. Though powers of a High
Court under Articles 226 and 227 are very wide and
extensive over all courts and tribunals throughout the territories in relation
to which it exercises jurisdiction, such powers must be exercised within the
limits of law. The power is supervisory in nature. The High Court does not act
as a court of appeal or a court of error. It can neither review nor
reappreciate, nor reweigh the evidence upon which determination of a
subordinate court or inferior tribunal purports to be based or to correct
errors of fact or even of law and to substitute its own decision for that of
the inferior court or tribunal. The powers are required to be exercised most
sparingly and only in appropriate cases in order to keep the subordinate courts
and inferior tribunals within the limits of law.”
20.
Observations similar in nature were made in Krishnanand v. Director of
Consolidation[(2015) 1 SCC 553],
wherein it was held that:
“12. The High Court has committed
an error in reversing the findings of fact arrived at by the authorities below
in coming to the conclusion that there was a partition. No doubt, the High
Court did so in exercise of its jurisdiction under Article 226 of the
Constitution. It is a settled law that such a jurisdiction cannot be exercised
for reappreciating the evidence and arrival of findings of facts unless the
authority which passed the impugned order does not have jurisdiction to render
the finding or has acted in excess of its jurisdiction or the finding is
patently perverse. …”
(Emphasis
Supplied)
21.
In our considered view, the High Court has committed an error of law and facts
in setting aside the concurrent findings in both the impugned judgment and
order. There was no basis for the High Court to ignore the findings of the
authorities and come to its own conclusion by appreciating the evidence on
record. The same was outside the purview of Article 226 of the
Constitution of India in the absence of any perversity or illegality afflicting
the findings of the authorities.
22.
A plain reading of the impugned judgment shows that the High Court has exceeded
its jurisdiction in reappreciating the evidence and substituting the factual
findings recorded by the authorities below. The conclusion that the disputed
land should be treated as “Oosar” land is unsupported by the evidence on
record. Further, the authorities below rightly observed that the disputed land
was Johad (Pond) and was kept out of the consolidation scheme, as it was being
used as a water reservoir by the villagers for their daily needs. Given the
ex-parte decree passed in favour of the appellant by the Civil Judge on 7th
November, 2005, whereby the respondent was permanently prohibited from
disturbing the villagers’ right to use the land as Johad (Pond), the High Court
erred in disturbing the orders of the lower authorities.
23.
In regard to the order passed in the civil review petition, we are constrained
to make certain observations. In the said order it was observed that by virtue
of order passed in the writ petition, the order of the Collector dated 27 th
August, 2004 was set aside and, therefore, the permanent injunction granted by
the Civil Judge, Junior Division, Ghaziabad, dated 7th November, 2005
automatically rendered ineffective. We find the said observation of the High
Court to be problematic on at least two counts. One, that the order of the
Collector formed only one part of the basis for seeking a permanent
injunction and was not the raison d’etre of the permanent injunction so issued.
Second, that an order granting a permanent injunction, with the authority
having given its independent and anxious consideration, cannot be set aside in
such a cursory and callous manner, more so under the supervisory jurisdiction
of the Court. A permanent injunction is an order of substance and ought to be
treated as such. This manner of setting aside the permanent injunction has to
be deprecated.
24.
Accordingly, we allow the appeals. The impugned judgment and orders dated 13th
May, 2013 in Civil Review Petition No.118411 of 2013 in Writ Petition (C)
No.9192 of 2007 and the final order and judgment dated 17th January, 2013 in
Writ Petition (C) No.9192 of 2007 by the High Court of Judicature at Allahabad,
are set aside. The findings of the authorities declaring the disputed land as
Johad (pond), are restored.
Pending
application if any, shall disposed of.
------