Ajay Singh vs Khacheru

NON-REPORTABLE 2025 INSC 9 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos………………..OF 2025 (Arising out of Special Leave Petition(Civil) Nos. 34407-34408 of 2013)

AJAY SINGH … APPELLANT (S)

Versus

KHACHERU AND ORS. … RESPONDENT(S)

JUDGMENT

SANJAY KAROL J.

Leave granted.

2. The present appeals have been preferred against the judgment and order

dated 13th May, 20131 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 20072 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 Signature Not Verified

2003-04 and against the order dated 29th December, 2006 passed by the Digitally signed by SNEHA DAS Date: 2025.01.02 17:46:45 IST Reason: 1 Impugned order 2 Impugned Judgment

1 | SLP (C) Nos. 34407-34408 of 2013 Additional Commissioner in Review Application in Revision No.135/2003-04,

was set aside. The Civil Review Petition No.118411 of 20133 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"4 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

3 Impugned Order 4 In some other places, the record spells this as ‘Usar’

2 | SLP (C) Nos. 34407-34408 of 2013 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

3 | SLP (C) Nos. 34407-34408 of 2013 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

4 | SLP (C) Nos. 34407-34408 of 2013 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

5 | SLP (C) Nos. 34407-34408 of 2013 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. Guram5.

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

5 (1986) 4 SCC 447

6 | SLP (C) Nos. 34407-34408 of 2013 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 Bajaj6, 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

Consolidation7, 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

6 (2008) 9 SCC 1 7 (2015) 1 SCC 553

7 | SLP (C) Nos. 34407-34408 of 2013 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

8 | SLP (C) Nos. 34407-34408 of 2013 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.

………………………J. (C.T. RAVIKUMAR)

………………………J. (SANJAY KAROL) 2nd January, 2025;

New Delhi.

9 | SLP (C) Nos. 34407-34408 of 2013