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2024 DIGILAW 1159 (ALL)

Ram Vishal Pandey v. District Judge Sultanpur

2024-04-29

ALOK MATHUR

body2024
JUDGMENT : Alok Mathur, J. 1. Heard Shri Amit Kumar Singh, learned counsel for petitioner, learned Standing Counsel for respondent nos. 1 to 3 and perused the material available on record. 2. By means of the present writ petition, the petitioner has challenged order dated 11.01.2024 passed by the District Judge, Sultanpur, thereby dismissing the appeal preferred by the petitioner against the order dated 01.02.2023 passed in Civil Suit No. 1532 of 2022 by the Civil Judge (Junior Division), South, Sultanpur, who had rejected the application moved under Order 39, Rule 1 and 2 preferred by the petitioner. 3. It has been submitted by learned counsel for petitioner that Gata No. 210 situated at Village Thanwarbari, Pargana Miranpur, Tehsil Sadar, District Sultanpur was recorded in the name of Ramhit prior to the consolidation operation. He has submitted that the proceedings under Section 122 -B of the U.P. Z.A. & L.R. Act was instituted against the father of petitioner late Ram Kishore and statement of Lekhpal was also recorded where it was found that the petitioner was in possession of property situated at Gata No. 196. He also had recorded that Gata No. 196 (Old No. 210) was previously recorded in the name of Ram Kishore but after the consolidation operations, it had been recorded as an Abadi and was of the view that the benefit of Section 123 of the Z.A. & L.R. Act can be given to the petitioner and accordingly, dropped the proceedings under Section 122 -B of the U.P. Z.A. & L.R. Act. The said order was passed on 26.08.1989 by the Tehsildar, Sadar, Collectorate, Sultanpur. 4. It has been submitted that subsequently again proceedings under Section 67 of the U.P. Revenue Code has been initiated against the petitioner, which has been concluded by means of order dated 16.08.2022 by the Tehsildar (Judicial)/Assistant Collector, Sadar, Sultanpur where the petitioner has been held to be an encroacher of Gata No. 196 M/0.011 hectares and eviction order as well as penalty against him has been imposed. Against the said order, the petitioner has filed a writ petition before this Court bearing Writ-C No. 211 of 2023, which was disposed of on 22.03.2023 wherein the Court observed that the petitioner has equally efficacious remedy of filing a revision against the order passed under Section 67 of the U.P. Revenue Code but provided protection to the petitioner to the effect that till filing of the revision or a period of 15 days from the receipt of the certified copy of the order of this Court, the status quo as on today in respect of the property of the petitioner shall be maintained and was further provided that till disposal of the interim relief application of the petitioner by the revisional authority, his peaceful possession over his property may not be disturbed. 5. Learned counsel for petitioner submits that till date application for interim relief has not been considered and consequently, the protection granted by this Court by means of order dated 22.03.2023 is still continued. 6. It is in the aforesaid circumstances that repeated efforts were made by the State authorities to remove the petitioner from his holding that he had moved a civil suit for permanent injunction against the Gaon Sabha and others to restrain them from evicting the petitioner from Gata No. 196. In the said suit, the petitioner had moved an application under Order 39, Rule 1 and 2 of the C.P.C. seeking a temporary injunction against the respondents. The Civil Judge (Junior Division), South, Sultanpur by means of order dated 21.02.2023 has rejected the application of the petitioner. After considering the submissions made on behalf of the petitioner, he was of the considered view that after the consolidation operations, the land has been recorded as Abadi and consequently, is vested with the State and prima facie, the petitioner is not the owner of the said land and consequently, applying the triple fold test as laid down for considering the application under Order 39, Rule 1 and 2, he was of the view that no case has been made out for granting of temporary injunction as prayed by the petitioner, consequently, rejected the same. 7. 7. Being aggrieved by the said order dated 01.02.2023, the petitioner had filed an appeal before the District Judge, Sultanpur, which has also been rejected by means of order dated 11.01.2024 upholding the order of the Civil Judge (Junior Division), South, Sultanpur dated 01.12.2023 and orders dated 11.01.2024 and 01.02.2023 has been impugned by the petitioner in the present writ petition. 8. Learned counsel for petitioner has reiterated his submissions, which were made before the trial court and the appellate court stating that the petitioner's possession over the said land is liable to be regularized in light of the provisions contained in Section 123 of the U.P. Z.A. & L.R. Act and subsequently, the said provisions were replaced by Section 67 -A of the U.P. Revenue Code where in case it is demonstrated that the permanent house of the petitioner is existing since November 29, 2012, on a land which is referred to Section 63 of the U.P. Revenue Code and not a land reserved for any public purpose that the site of such house can be settled in his favour. There is dispute with regard to the fact that no application under Section 67 -A of the U.P Revenue Code has been moved by the petitioner before the Prescribed Authority so that the claim of the petitioner can be adequately considered and in case he fulfills all the conditions as laid down in Section 67 -A of the U.P. Revenue Code, the said plot can be settled in favour of the petitioner. 9. Considering both the impugned orders, it is noticed that the trial court as well as the appellate court were persuaded by the fact that the petitioner is not the recorded owner of the said plots as after the consolidation operations, the said plots are indicated as Abadi and consequently, the said land vests with the State Government. Once it is noticed that the land is vested with the State Government and there is no order in favour of the petitioner justifying his occupation of the said land, the courts below cannot be faulted for rejecting the application for interim injunction prayed by the petitioner. Once it is noticed that the land is vested with the State Government and there is no order in favour of the petitioner justifying his occupation of the said land, the courts below cannot be faulted for rejecting the application for interim injunction prayed by the petitioner. The petitioner could not prima facie, demonstrate his ownership or even remote title over the said land, which was necessary for grant of the injunction in his favour and accordingly, this Court is of the considered view that there is no error in the impugned orders passed by the District Judge, Sultanpur dated 11.01.2024 or by the Civil Judge (Junior Division) South, Sultanpur dated 21.02.2023. Accordingly, this Court does not find any merit in the petition and is dismissed. 10. However, noticing that as per the petitioner, the protection granted by this Court by means of order dated 22.03.2023 is already existing, it shall be open for the petitioner to move appropriate application under Section 67 -A of the U.P. Revenue Code before the Prescribed Authority. It is provided that on receipt of the said application, he shall proceed to consider and decide the same expeditiously in accordance with law.