B M KHARWAR Vs. RAMANLAL MOTIRAM
HIGH COURT OF GUJARAT
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(1.) This is a revision application by the original plaintiff who bad filed a suit for permanent injunction and who also prayed for an interim injunction to restrain the defendant from interfering with the plaintiffs possession of the suit land and restraining him from entering into the suit land and from cultivating the same or doing any act on the same land. The trial Court granted an interim injunction but later vacated it holding that it is not proved that the plaintiff was prima facie in possession of the land. Regarding the injunction which was prayed to restrain the defendant converting the suit land from grass land to agricultural land the injunction was refused on the ground that no damage is to occur to the plaintiff as the plaintiffs case is that the defendant is a trespasser and that in fact the conversion of such a land would be to the plaintiffs advantage. The trial Court held that there is no question of applying the Bombay Tenancy and Agricultural Lands Act of 1947 when the plaintiff's case is that the defendant is merely a trespasser. For these reasons the trial Court vacated the ad interim order granted by it. In appeal the District Court confirmed this order and hence this present revision application.
(2.) There is a finding of both the Courts below that prima facie the plaintiff is not in possession of the land. This is purely a question of fact and ordinarily a revision would not lie But it is contended by the learned counsel for the petitioner that the District Court was wrong in holding that under sec. 135B of the Land Revenue Code there is a presumption in favour of correctness of entries relating to the tenancy in the record of rights. Section 135B of the Land Revenue Code reads as follows:-- (1) A record of rights shall be maintained in every village and such record shall include the following particulars:-- (a) the names of all persons (other than tenants) who are holders occupants owners or mortgagees of the land or assignees of the rent or revenue thereof; (b) the nature and extent of the respective interests of such persons and the conditions or liabilities (if any) attaching thereto; (c) the rent or revenue (if any) payable by or to any of such persons; (d) such other particulars as the Provincial Government may prescribe by rules made in this behalf; (2) Provided that the said particulars shall be entered in the record of rights with respect to perpetual tenancies and also with respect to tenancies of any other classes to which the Provincial Government may by notification in the Official Gazette direct that the provisions of this section shall apply in any local area or generally. Under this section therefore in the absence of a notification of Government the record of rights would not include a register of tenancies in respect of lands. But there is a notification No. 2252/49 dated 27-2-1950published at page 425 of the Bombay Government Gazette Part IV-B by which the Government of Bombay directed that the provisions of sec. 135 of the Land Revenue Code shall apply to all tenancies in respect of lands within the meaning of the Bombay Tenancy and Agricultural Lands Act 1948 Under sec. 135J of the Land Revenue Code an entry in the record of rights and a certified entry in the register of mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.
(3.) The learned counsel for the petitioner however relies on a judgment of the Bombay High Court in Special Civil Application No. 522 of 1956 and contends that the notification of the Government of Bombay is ultra vires.;
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