KIRPA Vs. DEVIDITTA
LAWS(HPH)-1952-9-1
HIGH COURT OF HIMACHAL PRADESH
Decided on September 20,1952

KIRPA Appellant
VERSUS
Deviditta Respondents

JUDGEMENT

CHOWDHRY,J. - (1.) THIS is a defendants' application in revision against the judgment and decree of the learned District Judge of Chamba, dated 18 1 1952 whereby, allowing the plaintiffs' appeal and setting aside the judgment and decree of the Subordinate Judge of Chamba, dated 29 9 1951, he partially decreed the suit of the plaintiffs respondents.
(2.) THE houses of the parties are close to each other and are separated only by a lane. It is common ground that a partition has already taken place between them and each party has been allotted his moiety share. Adjacent to the house of the defendants and to the south of it lies a plot of land 2 marlas in area. The dispute in the present case relates to a portion of the said plot of land nearest to the house of the defendants. The defendants started certain constructions on this area and the plaintiffs filed the present suit for the demolition of the constructions and for an injunction perpetually to restrain the defendants from building on that area. The suit was based on two grounds: (1) that the area in dispute belongs to the plaintiffs as it had been allotted to them in the said partition, and (2) that the strip of the land in suit served as a passage for approach to the plaintiffs' thrashing floor for plaintiffs themselves and his cattle which had been totally obstructed. The defendants denied the title of the plaintiffs and set up their own title, their contention being that the strip of land in suit had been allotted to them in partition, and they also denied that the disputed land in question was in any way in the use and occupation of the plaintiffs. The trial Court held against the plaintiffs on both the points, the findings being that there was no evidence that the defendants had encroached upon any land belonging to the plaintiffs but it appeared on the contrary that the defendants had made the constructions on old foundations within the line of demarcation between the respective areas of the parties and that a strip of land one karam in area had been left beyond the area in suit for the plaintiffs' passage. In the result, the trial Court dismissed the suit of the plaintiffs. The learned District Judge on plaintiffs' appeal recorded certain findings, to which I shall refer presently, and allowing the appeal decreed the suit of the pltfs. restraining the defts. from making any further constructions on the land in suit although the defendants were permitted to maintain the constructions which they had already made.
(3.) THERE was a preliminary objection raised by the learned counsel for the plaintiffs respondents that this Court is not authorised in exercise of its revisional jurisdiction to interfere with the appellate judgment of the District Judge, and in support of this contention he relied upon the ruling of their Lordships of the Privy Council reported as 'Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras', AIR 1949 PC 156, and of a decision of the Allahabad High Court reported as' 'Surya Pal Singh v. Chiranji', AIR 1944 All 170 (FB). The latter ruling only incidentally, and therefore very briefly, dealt with the question of interference in exercise of revisional jurisdiction, but the matter was the main subject of decision in the said ruling of their Lordships of the Privy Council. It was laid down by their Lordships as follows: "Section 115 applies only to cases in which no appeal lies, and where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters: (a) That the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law. There can be no justification whatsoever for the view that Section 115 (c) was intended to authorise the High Court to interfere and correct gross and palpable errors of Subordinate Courts. It would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured. Where the High Court interfered on the ground that the subordinate Court had made a serious mistake in the construction of a will: Held that the order of the High Court was without jurisdiction and must be set aside." ;


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