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2021 DIGILAW 359 (ALL)

Akhtar Husain v. Zulfiqar Husain

2021-03-05

PRAKASH PADIA

body2021
JUDGMENT : PRAKASH PADIA, J. 1. Heard learned counsel for the petitioner and Sri. Ali Qambar Zaidi, learned counsel for respondent No. 1. 2. The petitioner has preferred the present petition inter-alia with the prayer to set-aside order dated 09.09.2020 passed by the Additional District Judge, Court No. 11, Muzaffarnagar in Civil Misc. Appeal No. 08 of 2020 (Akhtar Husain vs. Zulfiqar Husain and Others) as well as order dated 12.08.2020 passed by Civil Judge (Junior Division) Muzaffar Nagar in Case No. 556 of 2019 (Zulfiqar and Others vs. Akhtar Husain). 3. Facts in brief as contained in this petition are that Original Suit No. 556 of 2019 was filed by the plaintiff-respondents against the present petitioner for permanent injunction with a prayer to restrain the defendant-petitioner from construction over the common land and a further prayer has also been made to restrain the defendants of the suit to open the door and windows to the side of Masjid and Imambada. An application for grant of interim injunction was also filed by the plaintiff-respondents being Application No. 6C. On the date, the Suit was preferred, the interim injunction was granted in favour of the plaintiff-respondents by the trial Court vide its order dated 01.10.2019. 4. Objections were filed by the petitioners-defendants to the aforesaid interim injunction application. The defendant-petitioner also filed his written statement. Against the ex-parte interim injunction dated 01.10.2019, the defendant-petitioner filed a Misc. Appeal No. 2 of 2020 on 13.11.2019 before the District Judge Muzaffar Nagar. The aforesaid appeal was decided by the District Judge Muzaffar Nagar vide its judgment and order dated 20.02.2020. By the aforesaid order, the Trial Court was directed to reconsider the application for temporary injunction after hearing both the parties. The application for temporary injunction was again allowed by the trial Court after hearing both the parties vide its judgment dated 12.8.2020. Against the aforesaid order, again a Misc. Appeal No. 8 of 2020 was filed before the District Judge Muzaffar Nagar. The aforesaid appeal was dismissed by the District Judge Muzaffar Nagar vide its judgment and order dated 09.09.2020. Hence the present petition. 5. It is argued by learned counsel for the petitioner that Hayat Ali was ancestor of the petitioner and the respondents. Late Hayat Ali had constructed a Mahal in Gram Jujhera District Muzaffar Nagar. The aforesaid appeal was dismissed by the District Judge Muzaffar Nagar vide its judgment and order dated 09.09.2020. Hence the present petition. 5. It is argued by learned counsel for the petitioner that Hayat Ali was ancestor of the petitioner and the respondents. Late Hayat Ali had constructed a Mahal in Gram Jujhera District Muzaffar Nagar. It is stated in paragraph 13 of the petition that the petitioner was A.S.I. in Delhi Police and he was living with his family in the Government Quarter alloted by the Department. When he was superannuated from his service, he was directed to vacate the quarter allotted to him by the Government up to 31.12.2020. After his retirement, the petitioner wants to shift his village, in this regard he started construction in his old house. The constructions were raised on the old foundation and no extra land was acquired by him for the purpose of construction. It is further stated that when the constructions were started by the petitioner, the suit in question has been preferred by the plaintiff-respondents on fictitious grounds. It is further argued that the petitioner has not encroached any land so far as ventilator, window and pari are concern. It is further argued that while passing the order dated 12.8.2020 by the Civil Judge concerned, no demarcation was taken place and the interim injunction was granted. It is further argued that the injunction could not be granted without identification of the disputed land. 6. On the other hand, it is argued by counsel for the respondent that till date, there is no family partition whatsoever has been made between the parties in respect of the property in dispute. It is further argued that the present petitioner-defendant in the suit started raising the construction over the common land after encroachment, certain constructions have been made. It is further argued that in case, any of constructions made, it will create dispute in future. It is further argued that after taking into consideration all the three ingredients are required of the CPC, the interim injunction was granted. It is further argued that the appeal was wholly illegally filed by the petitioner-defendant before the District Judge Muzaffar Nagar and the same was rightly rejected. 7. Heard learned counsel for the parties and perused the record. 8. It is further argued that the appeal was wholly illegally filed by the petitioner-defendant before the District Judge Muzaffar Nagar and the same was rightly rejected. 7. Heard learned counsel for the parties and perused the record. 8. It appears from perusal of the record that no partition whatsoever has been made in respect of the property in dispute and after hearing both the parties, the interim injunction was granted by the Trial Court vide its order dated 12.08.2020. The Supreme Court in the case of Gangu Bai and Others vs. Sitaram Balchandra Sukhtankar and Others, AIR 1983 SCC 742 held that if respondents are allowed to put up construction by the use of the F.S.I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. Paragraph 6 of the aforesaid judgment is quoted below:- “If respondents are allowed to put up construction by the use of the F.S.I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced.” 9. In the case of Vidya Matri Mandir (Regd.) Ghaziyabad vs. Rajinder Nath and Others, 1991 (2) AWC 786 (DB), the Division Bench of this Court held that even a co-sharer may be restrained by the temporarily injunction from making construction. Paragraph 10 of the aforesaid judgment is quoted below:- “Even a co-sharer may be restrained by temporary injunction from making construction as held in Ganguai vs. Sitaram. It was held that injunction restraining the co-sharer from making construction of entire land may be granted if the court feels that the situation may become irreversible at the time of final decision if the defendant is allow to make constructions.” 10. It was held that injunction restraining the co-sharer from making construction of entire land may be granted if the court feels that the situation may become irreversible at the time of final decision if the defendant is allow to make constructions.” 10. Taking into consideration the aforesaid law laid down by the Supreme Court as well as by a Division Bench of this Court, the interim injunction was granted by the trial Court after hearing both the parties and against the aforesaid order, the appeal was filed by the defendants which was dismissed after taking into consideration of all aspects of the matter vide judgment and order dated 09.09.2020. From perusal of the entire record, it is clear that till date no demarcation whatsoever has been taken place in the property in question. From perusal of the law laid down the Apex Court in the case of Gangu Bai (supra) as well as by a Division Bench of this Court in the case of Vidya Matri Mandir (supra), it is clear that no protection would be granted unless and until the demarcation will take place between the parties. In this view of the matter, I am of the opinion that interim injunction was rightly granted by the Trial Court and Misc. Appeal filed against the same by the petitioner was rightly rejected by the appellate court. 11. In view of the above discussion, the petition lacks merits and the same is liable to be dismissed and is hereby dismissed. No order as to costs.