SABINA, J. - (1.) PETITIONERS have filed this petition challenging the order dated 16.8.2012 whereby application moved by petitioners under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 ('CPC' for short), was dismissed by the Appellate Court and the order dated 26.2.2011 (Annexure P -9) passed by the Trial Court allowing the said application, was set aside.
(2.) LEARNED senior counsel for the petitioner has submitted that as per the revenue record, the land in question was described as Samadh Baba Sidh whereas the case of the Gram Panchayat was that it was being used as cremation ground. However, as per the revenue entries, the area and kind of land was described as Samadh Baba Sidh and not as cremation ground. In fact, the cremation ground was in khasra No. 102 and not in khasra number in dispute i.e. 105. Learned counsel for respondent No. 1, on the other hand, has opposed the petition and has submitted that as per jamabandi for the year 1967 -68, the land in dispute was described as cremation ground. Hence, the Appellate Court had rightly allowed the appeal filed by the Gram Panchayat and had rightly dismissed the application moved by the petitioners under Order 39 Rule 1 and 2 CPC.
(3.) PETITIONERS have filed suit for permanent injunction restraining the defendants from interfering in their peaceful possession. In order to prima facie establish the fact that the land in question was being used as Samadh Baba Sidh, jamabandis for the year 1997 -1998 onwards were placed on record. As per the said jamabandis, the khasra number In question i.e. 105 was gair mumkin Samadh Baba Sidh. However, as per the jamabandi for the year 1967 -1968 and the khasra girdawaris, placed on record by the Gram Panchayat, the land in question was described as cremation ground. Presumption of truth is attached to the entries in the jamabandi whereas the said presumption is not attached to the entries in the khasra girdawaris. It is only in the year 1967 -1968, entry was made in the jamabandi that the land in question was cremation ground. However, in the later entries from the year 1997 -1998 onwards, the land in question has been described as gair mumkin Samadh Baba Sidh. At this stage, later entries in the jamabandi are liable to be relied upon. Since presumption of truth is attached to the entries in the jamabandi, there was prima facie case and balance of convenience in favour of the petitioners. Parties are yet to lead their evidence in support of their respective pleas. It is only after the parties lead their evidence that it would be established as to whether the land in question was Samadh Baba Sidh or was being used as cremation ground. However, at this stage prima facie from the entries in the latest jamabandis, it is evident that the land in question was being used as Samadh Baba Sidh. In these circumstances, the learned Trial Court had rightly allowed the application moved by the petitioner under Order 39 Rule 1 and 2 CPC. However, the Appellate Court had erred in setting aside the order dated 26.2.2011 (Annexure P -9).;