Research › Search › Judgment

Uttarakhand High Court · body

2017 DIGILAW 232 (UTT)

VIKAS YADAV v. BALI RAM

2017-04-11

U.C.DHYANI

body2017
JUDGMENT U.C. Dhyani, J.(Oral) By means of present writ petition, the petitioner seeks appropriate order or direction for setting aside the impugned order dated 13.01.2017, passed by learned I Addl. District Judge, Udham Singh Nagar- Rudrapur, in Misc. Civil Appeal no. 72 of 2014, Balli Ram vs Vikas Yadav. 2. Plaintiff-petitioner filed a suit against defendant-respondent for permanent prohibitory injunction along with an application under Order 39 Rules 1&2 CPC for granting temporary injunction. The trial court [Civil Judge (Jr. Div.), Kashipur] allowed such an application. Defendant-respondent had also prayed for relief of temporary injunction in his favour, which was dismissed by the trial court vide order dated 21.11.2014. Defendant-respondent was restrained from interfering in the disputed land, details of which were given at the foot of the plaint, and which comprises of khasra no. 276/1, admeasuring 0.010 Hectare. 3. Aggrieved with the same, defendant-respondent filed misc. civil appeal, which was allowed by learned I Addl. District Judge, Udham Singh Nagar vide order dated 13.01.2017. Aggrieved against the same, present writ petition has been filed by the plaintiff-petitioner. 4. It is settled law that the plaintiff-petitioner in order to succeed in suit has to stand on his own legs. For obtaining a temporary injunction order, the plaintiff has to show his prima facie case. Since it was a revenue paying land, therefore, it was incumbent upon the plaintiff-petitioner to have filed some documents that he is owner-in-possession of the disputed land, which has not been done in the instant case. Plaintiff-petitioner has not filed any document in respect of ownership in possession of the person from whom he purchased said land, though it is the submission of learned counsel for the petitioner that the petitioner is in physical possession of the disputed land. In the absence of any documentary evidence, it cannot be inferred that the plaintiff-petitioner has prima facie case over the suit property. 5. There is yet another aspect of the matter. The plaintiff-petitioner moved an application for mutation before Tehsildar, Kashipur. Said application was dismissed by Tehsildar on the ground that no such land exists on the spot in the name of Mukesh Kumar, the person from whom the plaintiff is stated to have purchased the land in question. Mukesh Kumar had, therefore, no title to sell the land bearing khasra no. 276/1, admeasuring 0.010 Hectare or part thereof. Said application was dismissed by Tehsildar on the ground that no such land exists on the spot in the name of Mukesh Kumar, the person from whom the plaintiff is stated to have purchased the land in question. Mukesh Kumar had, therefore, no title to sell the land bearing khasra no. 276/1, admeasuring 0.010 Hectare or part thereof. It appears that Mukesh Kumar sold excessive land to the plaintiff-petitioner for which he had no right to sell. Neither such land exists on the spot in the name of person from whom the plaintiff-petitioner purchased the same, nor it is recorded in favour of the plaintiff-petitioner. 6. Learned lower appellate court, while deciding misc. civil appeal, therefore, rightly found that there is no prima facie case in favour of the plaintiff-petitioner. Learned lower appellate court has assigned cogent reasons for coming to such a conclusion. This Court is unable to take a view contrary to what was taken by the lower appellate court, who has passed a reasoned order in support of its conclusions. This Court need not repeat those reasons for the sake of brevity. When prima facie case is not found in favour of the plaintiff-petitioner, there is no question of other elements, viz., balance of convenience and irreparable loss, being in his favour. 7. Writ petition, therefore, fails and is dismissed. 8. Learned trial court shall decide the suit for permanent prohibitory injunction untrammeled by any of the observations made by this Court in any of the foregoing paragraphs of this judgment. [Stay vacation application no. 3176 of 2017 also stands disposed of.]