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2016 DIGILAW 1318 (ALL)

Katyayani Prasad Mishra v. Mohd. Ishaq

2016-04-08

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Anil Kumar Mishra, for the petitioners and Sri O.P. Singh, Senior Advocate, assisted by Sri R.P. Yadav, for the contesting respondent. 2. This petition has been filed for setting aside the orders of Civil Judge (Senior Division), dated 15.07.2013, granting interim injunction to the plaintiff and Additional District Judge, dated 08.03.2016, dismissing the appeal of the petitioners against aforesaid order. 3. Mohd. Idarish (now represented by respondents-1 to 4) filed a suit on 31.03.2011 (registered as O.S. No. 86 of 2011) for permanent injunction, restraining the defendants from interfering in his possession over land shown by letters B C D E F G H I, in the plaint map. It has been stated in plaint that the plaintiff was owner plot 3045 (area 9 biswa) of village Billi Markundi, pargana Agori, district Sonebhadra, which was shown by letters B C D E F G H I, in the plaint map. The defendants have no concern with the disputed land. The plaintiff has raised construction of boundary wall up to 3 1/2 feet height and also kept some bricks and bolder on disputed land. Disputed land lies within municipal limits of Obera town and is a valuable land. The defendants, who are very powerful men and defendant-1 was posted as Sub-Inspector in U.P. Police intend to grab the disputed land. The defendants came over disputed land two days before and began to demolish his constructions on it. When the plaintiff forbade them they started quarrel on which various neighbours had gathered there then they went back. The plaintiff gave information of this incident to local police, who refused to take any action saying that it was a civil dispute. On these allegations, suit was filed. The plaintiff also filed an application (6-C), for interim injunction restraining the defendants from interfering with his possession over disputed land during pendency of the suit. 4. The petitioners contested the application for interim injunction and filed their objection. They stated that the plaintiff was not owner of the disputed land. Map attached along with plaint was not correct according to the spot. Plot 3045 (area 0.771 hectare) was a big plot. In compliance of judgment of Supreme Court in Banwasi Sewa Ashram Vs. State of U.P., survey operation was conducted according to the provisions of U.P. Land Revenue Act, 1901. Map attached along with plaint was not correct according to the spot. Plot 3045 (area 0.771 hectare) was a big plot. In compliance of judgment of Supreme Court in Banwasi Sewa Ashram Vs. State of U.P., survey operation was conducted according to the provisions of U.P. Land Revenue Act, 1901. In respect of plot 3045 a case (registered as Case No. 21325) under Section 54 of U.P. Land Revenue Act, 1901 Yunus and others Vs. State of U.P. was filed. Assistant Record Officer by his order dated 25.01.1995 held that 8 biswa belonged to Yunus, 7 biswa belonged to Smt. Bachchi Devi (defendant-4), 3 biswa 10 dhur belonged to Chhedi Dubey, 6 biswa belonged to Mohd. Idaris (the plaintiff), 7 biswa belonged to Smt. Sushila Devi (defendant-2), 11 biswa belonged to Smt. Dropadi Devi and 9 biswa belonged to Ramender. The plaintiff has deliberately concealed this fact. Houses of the plaintiff and his brother Yunus situate in east of disputed land after road on which he had constructed boundary wall. Smt. Sushila Devi had been in possession of her 7 biswa land from more than 30-35 years ago, which has been shown through letters Ka Kha Ga Gha, in the map given in objection. Smt. Bachchi Devi (defendant-4) was in possession of her 7 biswa land, out of which she had given 25 feet x 40 feet land to Pradeep Chaubey. It has been denied that the plaintiff was owner of 9 biswa land shown by letters B C D E F G H I, in the plaint map. Disputed land is not identifiable on the spot. It has been specifically denied that disputed land was surrounded with boundary wall of 3 1/2 feet height and has stated that there was no boundary wall. 5. Trial Court issued Court Amin, who inspected spot and submitted his report dated 08.04.2011. The petitioners filed their objection to the Amin's report. Thereafter a fresh Amin report dated 14.03.2013 was obtained, in which again earlier report and map was confirmed. The petitioners again filed their objection to Amin's report. Trial Court heard the arguments of the parties on the application for interim injunction and by order dated 15.07.2013, held that Assistant Record Officer, by order dated 05.08.2003, found Mohd. Idarish to be owner of 9 biswa land. The petitioners again filed their objection to Amin's report. Trial Court heard the arguments of the parties on the application for interim injunction and by order dated 15.07.2013, held that Assistant Record Officer, by order dated 05.08.2003, found Mohd. Idarish to be owner of 9 biswa land. The map given along with plaint fully tally with maps prepared by Court Amin, while map of given by the petitioners along with their written statement was not tallying with the map of Amin. House of the plaintiff, which is alleged to be in eastern side of road, is in plot 3006-Kha and not in plot 3045. The plaintiff proved his prima facie case. Balance of convenience lies in his favour. In case interim injunction is not granted he shall suffer grave and irreparable loss. On these findings, he granted interim injunction to the plaintiff. The petitioners filed an appeal (registered as Misc. Civil Appeal No. 88 of 2013) against the aforesaid order. Additional District Judge after hearing the parties affirmed the findings of Trial Court and dismissed the appeal by order dated 08.03.2016. Hence, this petition has been filed. 6. The counsel for the petitioners submitted that courts below have based their findings on the order dated 05.08.2003 and mechanically accepted it without corroborating with other evidence on record as well as actual position on spot. Assistant Record Officer, in his order dated 25.01.1995, found Smt. Sushila Devi (appellant-2) in possession of 7 biswa land of plot 3045, which is abadi land and she is residing in it but the Courts below have not considered this fact. Land in dispute is unidentifiable on the spot, the suit itself is liable to be dismissed. Taking shelter of interim order, the plaintiff is going to raise constructions over disputed land although this Court in Ram Kalap Vs. IV Addl. District Judge, 1989 All CJ 13, Som Nath Vs. Addl. District Judge and others, 1994 RD 246, Ram Dulare Pandey Vs. II Addl. District Judge, 1995 All CJ 551 and Mahmood Rais Vs. State of U.P., 2009 (107) RD 449 and Supreme Court in Maharwal Khewaji Trust Vs. Baldev Dass, AIR 2005 SC 104 held that purpose of granting interim order is to maintain status quo of disputed property during pendency of the suit. At this stage the plaintiff cannot be permitted to change the nature of the land. State of U.P., 2009 (107) RD 449 and Supreme Court in Maharwal Khewaji Trust Vs. Baldev Dass, AIR 2005 SC 104 held that purpose of granting interim order is to maintain status quo of disputed property during pendency of the suit. At this stage the plaintiff cannot be permitted to change the nature of the land. There is serious dispute between the parties in respect of location of the disputed land, which can only be decided after survey report as held by Supreme Court in Shreepat Vs. Rajendra Prasad, 2001 (Supple.) RD 135 (SC). He submitted that impugned orders are illegal and liable to be set aside. 7. I have considered the arguments of counsel for the parties and examined the record. Admittedly in compliance of judgment of Supreme Court in Banwasi Sewa Ashram Vs. State of U.P., AIR 1987 SC 374 , survey operation was conducted according to the provisions of U.P. Land Revenue Act, 1901, for giving right to the persons in occupation of Govt. land from particular period. According to petitioner-2, she was found to be owner of 7 biswa land in plot 3045 by order of Assistant Record Officer dated 25.01.1995 in Case No. 21325, under Section 54 of U.P. Land Revenue Act, 1901 Yunus and others Vs. State of U.P. According to the plaintiff, he was found to be owner of 9 biswa land of plot 3045 by order of Assistant Record Officer dated 05.08.2003. The plaintiff gave location of his land in the plaint map by letters B C D E F G H I. Two times Court Amin made spot inspection and found that location of disputed land as given in plaint map was correct, while location of land as given by the petitioners in their objection was not found to be correct. On the basis of order of Assistant Record Officer dated 05.08.2003 and Amin's reports, courts below found that prima facie case of the plaintiff was proved. There is no illegality in it. Order of Assistant Record Officer is presumed to be correct under Section 57 of U.P. Land Revenue Act, 1901. 8. The petitioners have shown the land in west of house of Smt. Bachchi Devi belonged to Smt. Bachchi Devi in the map attached to their objection, but Smt. Bachchi Devi herself did not claim it. Order of Assistant Record Officer is presumed to be correct under Section 57 of U.P. Land Revenue Act, 1901. 8. The petitioners have shown the land in west of house of Smt. Bachchi Devi belonged to Smt. Bachchi Devi in the map attached to their objection, but Smt. Bachchi Devi herself did not claim it. They have stated that there was no boundary wall of the disputed land but in both reports of Amin boundary wall was found on spot. In paragraph-28 of this petition, the petitioners have stated that they are residing in plot 3045 but in Amin's reports no house is found over disputed land. Prima facie case of the petitioners has not been proved. The petitioners have not come to Court and alleged infringement of their right by the plaintiff. As such at this stage, they cannot ask that the plaintiff be directed to maintain status quo on the spot. The courts below have not committed any illegality in granting interim injunction, in the facts of the case. 9. Supreme Court in Gangubai Bablya Chaudhary v. Sitaram Bhalchandra Sukhtankar, (1983) 4 SCC 31 , held that when an interim injunction is sought, the court may have to examine whether the party seeking the assistance of the court was at any time in lawful possession of the property. Once prima facie case is proved interim injunction could not be refused. 10. Supreme Court in Kishorsinh Ratansinh Jadeja v. Maruti Corpn., (2009) 11 SCC 229 , held that if the owners of the property is restrained from developing the same, it is they who will suffer severe prejudice, as they will be deprived of the benefit of the user of their land during the said period. The balance of convenience and inconvenience is against the grant of such an injunction. In view of the judgment of Supreme Court, the plaintiff cannot be asked to maintain status quo, particularly when the petitioners have failed to prove their prima facie case. 11. In view of aforesaid discussions, this petition has no merit and is dismissed.