JUDGMENT
P.K. Mohanty, J.
1. This revision is directed against the judgment dated 25.1.2002 of the 1st Adhoc Addl. District & Sessions Judge, Bhubaneswar confirming the order dated 28.6.2001 of the learned Civil Judge (S.D.), Bhubaneswar in Misc. Case No. 190 of 2001 dismissing the prayer, of the petitioner for grant of temporary injunction restraining the opp. parties from eviction.
2. The brief fact of the petitioner’s case is that the suit land was Anabadi land of which Lord Lingaraj Mahaprabhu Bije at Bhubaneswar was the ex intermediary. The ex-intermediary interest vested with the State Government since 18,3.1974, but prior to such vesting of intermediary estate, in the year 1964, the opp. party had inducted Kulamani Behera as a tenant. Said Kulamani possessed the suit land by paying rent to the deity and the Deity had granted ownership certificate in favour of him. After the death of Kulamani, his son, who is the present petitioner, is the owner in possession of the suit land and is possessing the same without any interference from any quarter. The petitioner has constructed a house over the suit land, where he is carrying on his business. However, the suit land has been erroneously recorded in favour of the opp. party during the Hal Settlement but there is a note of possession in favour of the petitioner. Taking advantage of the R.O.R., the opp. parties initiated a proceeding under Section 25 of the Orissa Hindu Religious Endowments Act before the Commissioner of Endowments, but the Commissioner, without affording opportunity of hearing, passed an order of eviction which is allegedly illegal. On receipt of such order of the Commissioner, the Collector, Khurda, has initiated Misc. Case No. 35 of 1996 and issued notice to the petitioner to show cause, as to why he shall not be evicted from the suit land and the petitioner has filed his show cause claiming his right, title and interest over the suit land in the aforesaid premises. On enquiry, it was found that the opp. party has got the land illegally recorded in his favour in Vesting Case No. 27 of 1983, which is illegal being against the tenancy right of the petitioner, It was claimed that the opposite party was never in Khas possession of the suit land and accordingly, the order obtained in Vesting Case No. 27 of 1983 is illegal. On being aware of the order of the Collector directing the Tahasildar for eviction, the petitioner filed the original suit for declaration and for permanent injunction along with the Misc. Case for temporary injunction.
3. The opposite party filed its objection, inter alia, on the ground that the father of the petitioner was never inducted as a tenant in relation to the suit land and that the opposite party has not received any rent from said Kulamani. The further case is that the opp. party was the rightful owner of the suit property and after vesting an application under Section 7-A of the O.E.A. Act was filed, which was numbered as O.E.A, Case No. 27 of 1985 before the Member, Board of Revenue and the Government of Orissa has settled the suit land in favour of the opp. party. Since the date of such settlement, the opp. party is the owner in the rightful possession of the suit land and the petitioner was a rank trespasser, which came to the knowledge of the opposite party after publication of the Record of Rights in the year 1991 making a note of illegal possession in his favour. The note of illegal possession was challenged before the Commissioner of Settlement and Consolidation in R. R. Case No. 37 of 1992 and subsequently, by an application under Section 25 of the Orissa Hindu Religious Endowment Act before the Collector, Khurda for eviction of the petitioner out of the said land.
4. The learned Civil Judge (Sr. Division), Bhubaneswar in his impugned order found the following undisputed fact :
(i) The land was originally recorded as Anaadi and the opp. party was the ex-intermediary of that property;
(ii) The ex-intermediary estate vested with the Govt. free from all encumbrances from 18.3.1974 and the opp. party in the Vesting Case No. 27 of 1983 Under Sections 6 and 7 of the O.E.A. Act has been settled with the suit land and during the Hal Settlement operation, the suit land has also been recorded in favour of the opp. party but with a note of illegal possession in favour of the petitioner.
The opposite party has challenged such entry in the court of Commissioner of Settlement and Consolidation in R. R. Case No. 37 of 1992 and subsequently filed Misc. Case No. 35 of 1996 before the Collector, Khurda for eviction and accordingly order of eviction has been passed. The possession of the suit land by the petitioner has not been disputed by the opposite party. However, the learned Civil Judge (Sr. Division) prima facie found that the petitioner had not filed a single scrap of paper to show that his father was ever inducted as a tenant by the opp. party in respect of the suit property or what the opp. party has accepted the rent from Kulamani Behera or the petitioner. The learned trial Court also prima facie found that there is no proof that at any time Kulamani or his son, the petitioner was accepted as a tenant. The learned trial Court also did not find from the pleadings any reason as to how the proceeding in O.E.A. Case No. 73 of 1983 or R.P. Case No. 37 of 1992 of Misc. Case No. 35 of 1996 to be illegal. The learned trial Court being not satisfied that there is a prima facie case in favour of the petitioner, the balance of convenience nor any irreparable injury is likely to be caused, had dismissed the application for injunction as against which the plaintiff-petitioner moved the learned District Judge in the Miscellaneous Appeal. The matter was heard by the 1st Adhoc Addl. District & Sessions Judge, Bhubaneswar and by an elaborate discussion of the materials on record, the learned lower appellate Court has confirmed the order of the learned Civil Judge (Sr. Division) and dismissed the appeal.
5. The learned counsel for the petitioner strenuously contends that the petitioner being a tenant for possession of the suit land has a prima facie case and the balance of convenience was in his favour and refusal of order of injunction will cause irreparable injury and as such, the learned Courts below ought to have granted an order of injunction restraining the opp. parties from getting the petitioner evicted by order of the Collector. It is further contention that the learned Courts below failed to appreciate that the commissioner of Endowments lacks jurisdiction under Section 25 of the Orissa Hindu Religious Endowments Act to find out the right, title and interest, inasmuch as in remarks column of the R.O.R. “unlawful possession in favour of the petitioner” has been noted. That record is under challenge.
The contention of the learned counsel cannot be accepted. It has been concurrently held by both the learned courts below that the plaintiff-petitioner has failed to show a prima facie case by producing any documents to the effect that Kulamani Behera, the late father was ever inducted as a tenant by the opposite party or that the opposite party had accepted rent in respect of suit property from either Late Kulamani or his son, the present petitioner. Nothing also appears to have shown as to how the proceeding in O.E.A. Case No. 73 of 1983 settling the land with the defendant-opposite party was illegal or without jurisdiction. The Courts below have also found no balance of convenience or irreparable injury in favour of the petitioner justifying a grant of injunction. Having held so on facts, the Courts below have refuted to pass an order of ad interim injunction during the pendency of the suit.
6. The law is well settled that the jurisdiction and power of the High Court under Section 115 of the Code of Civil Procedure is limited and restricted. The High Court is to see whether there is any jurisdictional error committed by the Courts below or whether there is manifest error of procedure committed by the said Court which has affected the ultimate decision resulting in gross injustice. The High Court, however, in exercise of power under Section 115 of CPC would not re-appreciate the evidence and differ from findings of fact and came to its own conclusion.
7. In that view of the matter, I do not find any cogent reason to interfere with the concurrent findings of facts recorded by the Courts below to take a different view and interfere in the impugned order in exercise of the powers of revision under Section 115 of the code of Civil Procedure.
In the result, the Civil Revision fails and is dismissed but without any order as to cost.