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2022 DIGILAW 1043 (ALL)

Nishant Poonia v. Board Of Revenue

2022-07-08

CHANDRA KUMAR RAI

body2022
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Sri D.K. Tripathi, learned counsel for the petitioners, Mrs. Anita Srivastava, learned Counsel for respondent nos.4 to 6, learned Standing Counsel for respondent nos.1 to 3 and Sri Sunil Kumar Singh, learned counsel for respondent no.7- Gaon Sabha. 2. With the consent of the learned counsel for the parties the writ petition is being disposed of finally at the admission stage. 3. Brief facts of the case are that the suit under Section 144 of U.P. Revenue Code, 2006 was filed before the trial Court by the plaintiffs-petitioners in respect of the disputed Khasra No.105, 127 and 149, total area 2.6450 hectare. An application for interim relief under Section 146 of the U.P. Revenue Code, 2006 was also filed and learned trial Court granted interim order on 30th November, 2019 to the effect that the authorities shall not alienate the property in dispute, by the subsequent order dated 7.9.2020 after hearing the counsel for the parties and even considering the provisions contained under Section 146 of U.P. Revenue Code, 2006 has confirmed the interim order dated 30th November, 2019 passed earlier. Against the order dated 30th November, 2019, defendants filed a Revision before the Court of Commissioner and learned Commissioner vide order dated 18th September, 2020 allowed the Revision and set aside the order dated 7.9.2020 on the ground that the plaintiffs are not recorded in the revenue records, as such, they are not entitled to the interim injunction. Against the order of the Commissioner Court, Revision under Section 210 of the U.P. Revenue Code, 2006 was filed before the Board of Revenue. The Board of Revenue by the impugned order dismissed the Revision as not maintainable, hence this writ petition. 4. Against the order of the Commissioner Court, Revision under Section 210 of the U.P. Revenue Code, 2006 was filed before the Board of Revenue. The Board of Revenue by the impugned order dismissed the Revision as not maintainable, hence this writ petition. 4. Learned counsel for the petitioner submitted that regular suit under Section 144 of U.P. Revenue Code, 2006 was filed in which triable issues have been raised and under Section 146 of the U.P. Revenue Code, 2006 application for temporary injunction was filed which was maintainable, accordingly, learned trial Court after considering the provisions of the law has restrained the parties from creating third party interest in respect of the property in dispute and the order was even confirmed by the trial Court after hearing the counsel for both the parties but learned Commissioner has illegally entertained the Revision and set aside the interim order from creating third party interest during pendency of the suit proceeding which will cause irreparable injury to the plaintiffs-petitioners and the Board of Revenue has not considered the petitioners' case in accordance with law and dismissed the Revision filed by the petitioners. Learned counsel for the petitioners placed reliance upon the decision of this Court in Rahmullah and Others Vs. District Judge Siddhartha Nagar and Others, reported in 1999 R.D. (Vol. 90) Page-1, in which it is held that order of status quo with regard to possession as well as nature and character of the property be maintained till the disposal of suit where the triable issues have been raised. 5. On the other hand, learned counsel for the respondents submitted that the petitioners have filed the suit on the baseless grounds. The petitioners are not recorded in the revenue records, even during consolidation operation they have not raised any objection, as such, petitioners are not entitled to any injunction which will cause irreparable injury to the defendants. Revision was rightly filed against the order of injunction passed by the trial Court and the Commissioner Court has rightly set aside the injunction order in the Revision filed by the defendants-respondents. Revision filed by plaintiffs-petitioners before Board of Revenue was rightly dismissed. In support thereof, learned counsel for the respondents has placed reliance upon the judgment of this Court dated 7.7.2015 passed in Writ-C No.36341 of 2015 (Rishi Kumar Vs. Revision filed by plaintiffs-petitioners before Board of Revenue was rightly dismissed. In support thereof, learned counsel for the respondents has placed reliance upon the judgment of this Court dated 7.7.2015 passed in Writ-C No.36341 of 2015 (Rishi Kumar Vs. State of U.P. And 3 Others), in which it is held that the Revision can be maintained under Section 333 of U.P.Z.A. and L.R. Act against the interim order passed by the courts below on the application under Section 229D of U.P.Z.A. and L.R. Act. 6. Considered the submissions of learned counsel for the parties. There is no dispute about the facts that the regular suit has been filed by the petitioners under Section 144 of the U.P. Revenue Code, 2006 and the application for temporary injunction was filed under Section 146 of the U.P. Revenue Code, 2006 and the trial Court has only granted injunction to the effect that the parties shall not sell the property in dispute. 7. Section 146 of the U.P. Revenue Code, 2006 is as follows: "146. Provision for injunction.- If in the course of a suit under section 144 or 145, it is proved by affidavit or otherwise- (a) that any property, trees or crops standing on the land in dispute is in danger of being wasted, damaged or alienated by any party to the suit; or (b) that any party to the suit threatens or intends to remove or dispose of the said property, trees or crops in order to defeat the ends of justice, the Court may grant a temporary injunction, and where necessary, also appoint a receiver." 8. Considering the provision of Section 146 of U.P. Revenue Code, 2006 as well as the ratio of law laid down by this Court in Rahamullah (supra) property in dispute should be remained intact as petitioners have raised the triable issues in the declaratory suit filed under Section 144 of U.P. Revenue Code, 2006. 9. Considering the entire facts and circumstances, the interest of justice will be served if proceeding of the suit is expedited and parties to the suit is restrained from creating any third party interest on the property nor nature and character of the property be changed so that the property be remained intact during pendency of the suit. 10. 9. Considering the entire facts and circumstances, the interest of justice will be served if proceeding of the suit is expedited and parties to the suit is restrained from creating any third party interest on the property nor nature and character of the property be changed so that the property be remained intact during pendency of the suit. 10. Accordingly, the writ petition is allowed, the impugned revisional order dated 2.3.2022 passed by respondent no.1 i.e. Board of Revenue U.P. at Allahabad and order dated 18.9.2020 passed by respondent no.2 i.e. Additional Commissioner III, Meerut Region, Meerut are set aside and direction is issued to the trial Court to decide the Suit No.03321 of 2019 expeditiously preferably within a period of six months from the date of production of certified copy of this order before him without granting unnecessary adjournment to the parties and till the disposal of the suit, parties to the suit will not create any third party interest in respect of the property in dispute nor change the nature and character of the property in dispute. 11. No orders as to the costs.