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1990 DIGILAW 459 (PAT)

Ramanand Rai v. Ambika Prasad Singh

1990-12-17

OM PRAKASH

body1990
ORDER Om Prakash, J. Reply to the counter affidavit has been filed. Keep it on the record. 2. Heard Shri Birendra Singh, learned counsel for the appellants and Shri K.D. Chatterjee, learned Counsel for the respondents on petition under Order 39, Rules 1 and 2 and section 151 C.P.C. kept at flag 'P', counter affidavit filed by the respondents at flag 'Z' and its reply filed by the appellants, kept at flag 'G' and also on petition under Order 26, Rule 10 C.P.C. kept at flag 'H' and counter affidavit filed by the respondents kept at flag 'I'. 3. It appears that the respondent's land lies adjacent north of the land of the appellants. The respondents purchased the land in the year 1959 and the appellants purchased land in the year 1969. Soon after purchase of the land by the appellants, there was some dispute which led to a proceeding under section 147 Cr. P.C. The appellants lost the case but did not move to a Superior Court. The respondents have alleged that in spite of losing the case, the appellants started creating trouble with their peaceful possession and they had to file title suit in 1976 for a permanent injunction restraining the appellants from interfering in their possession. In 1978, the court below after considering two reports of Pleader Commissioner to the effect that the appellants have access to their land from east or south-east, temporarily injuncted the appellants from interfering with respondents possession. Being dissatisfied, the appellants moved this court in a miscellaneous appeal but this court affirmed the order of temporary injunction. After the trial the court below decreed the respondents' suit restraining the appellants permanently from interfering in any manner with their possession. 4. Learned counsel for the appellants has pressed for appointment of a Pleader Commissioner to find as to whether they have got any other access Annexure-F to the counter affidavit to the petition under Order 39, Rules 1 and 2 and section 151 C.P.C. shows that the Pleader Commissioner appointed by the court below bas found that the appellants have access from east and south. In this view of the matter, I consider it unnecessary to appoint any other Pleader Commissioner for the same purpose. Learned counsel for the appellants has submitted that the court may order for maintaining status quo till the disposal of the appeal. 5. In this view of the matter, I consider it unnecessary to appoint any other Pleader Commissioner for the same purpose. Learned counsel for the appellants has submitted that the court may order for maintaining status quo till the disposal of the appeal. 5. Learned counsel for the respondents has argued that it would be gross misuse of the legal process if status quo is granted in view of the order of temporary injunction passed by the court below in 1978 after considering two reports of the Pleader Commissioner which was affirmed by this court and after passing of a decree for permanent injunction against the appellants in which the order of temporary injunction has merged. 6. In the facts and circumstances of the case I am of the opinion, that it is not a fit case in which an order under Order 39, Rules 1 and 2 and section 151 C.P.C. or even an order of status quo can reasonably be passed. 7. In the result, the petitions under consideration are rejected. Petitions rejected.