Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2018 (ALL)

Babu Ram v. Ram Nath Sharma

2016-05-24

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri Akhtar Ali holding brief of Sri Uma Nath Pandey for the petitioner and Sri Yagyavalk Pandey for the contesting respondents. 2. This petition has been filed for setting aside the order of Civil Judge (Junior Division) dated 13.5.2011 rejecting the application filed by the petitioner for interim injunction and the order of Additional Sessions Judge dated 2.3.2016 dismissing the appeal of the petitioner filed against the aforesaid order. 3. The petitioner filed a suit for permanent injunction restraining the defendants from damaging the house in dispute. Along with the plaint the petitioner has also filed an application for interim injunction with the same prayer. It has been stated by the petitioner that house in dispute belongs to the plaintiff and defendants - 2 and 3. Defendant -1 is tenant in the house in dispute. Although defendant-1 has paid rent up to December 2009 but thereafter he is not paying rent. Defendant-1 wants material alteration of the building in dispute for which he has no right. On these allegation the suit was filed. The suit was contested by Ram Nath, defendant-1 and Sukhbir alias Kashmira, defendant-3. So far as Ram Nath is concerned, he has stated that he is tenant in the premises in dispute for more than 40 years and he admitted that plaintiff and defendants - 2 and 3 were owner of the property in dispute. So far as Sukhbir alias Kashmira defendant-3 is concerned, he has not admitted the ownership of the petitioner. He has stated that house in dispute was property of defendant-3 and petitioner is colluding with defendant-2, wants to grab the property in dispute. 4. The application for interim injunction was heard by Civil Judge (Junior Division) who by the order dated 13.5.2011 found that the house in dispute is subject to assessment of Nagar Palika Nanauta since 1979 and in the assessment register in the column of owner, name of defendant-3 has been mentioned. So far as khewat is concerned, in the khewat name of the petitioner is jointly recorded along with other persons but in the sale deeds which have been executed by the petitioner , itself has been mentioned that petitioner left with no interest in the property in dispute. Thus the petitioner has failed to prove the prima facie case in respect of house in dispute. Thus the petitioner has failed to prove the prima facie case in respect of house in dispute. On this finding, he has rejected the application for interim injunction. The petitioner challenged the aforesaid order in Misc. Appeal No. 77 of 2011. The appeal was heard by Additional Sessions Judge, who upheld the finding of the trial court in respect of ownership of the premises in dispute and dismissed the appeal. Hence this petition has been filed. 5. Counsel for the petitioner submits that the trial court has illegally held that defendant-1 has vacated the premises in dispute although on the date of inspection made by the Commissioner, the possession of defendant-1 was found in the premises in dispute. Similarly the trial court has illegally noted that defendant-1 has not contested the matter although defendant-1 has filed written statement as well as objection in the application for interim injunction in which he has admitted the petitioner to be joint owner as well as paying rent to the petitioner also. Even then the trial court proceeded upon irrelevant facts, ignoring the material facts available on record. The order of trial court was illegal but the appeal of the petitioner has been illegally dismissed. 6. I have considered the arguments of the counsel for the parties and examined the records. 7. So far as observation of the trial court in respect of possession of defendant-1 as well as filing of written statement and objection by defendant-1 is concerned, from the records it appears to be incorrect. The concurrent finding recorded by both the courts below that in the khewat the petitioner was recorded as joint owner and after the sale deeds executed by the petitioner he left with no share in the property in dispute, cannot be challenged by the petitioner. Similarly, the finding that the house is in dispute is subject to assessment of Nagar Palika Nanauta, since 1979-80 and name of defendant-3 was alone recorded as the owner of premises in dispute, also could not be challenged by the petitioner. In such circumstances, the findings of fact recorded by both the courts below do not suffer from any illegality. The petitioner could not prove his prima facie case as such no interference is required by this Court. 8. The petition has no merit, it is dismissed. 9. In such circumstances, the findings of fact recorded by both the courts below do not suffer from any illegality. The petitioner could not prove his prima facie case as such no interference is required by this Court. 8. The petition has no merit, it is dismissed. 9. However, the trial court shall proceed to decide the suit, expeditiously, without granting any unnecessary adjournment to either of the parties. Petition dismisses.