Ajit Kumar Shanti Prakash Vs. Rajendra Bahadur & 10 Others

Allahabad High Court (Single Judge)

WRIT - A, 1734 of 2015, Judgment Date: May 04, 2015

                     HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. - 2 
Case :- MATTERS UNDER ARTICLE 227 No. - 1734 of 2015 
Petitioner :- Ajit Kumar Shanti Prakash 
Respondent :- Rajendra Bahadur & 10 Others 
Counsel for Petitioner :- Alok Kumar Yadav 
Counsel for Respondent :- S.C.,Namwar Singh,Sanjiv Singh 

Hon'ble Ashwani Kumar Mishra,J. 
This petition arises out of the orders passed by courts below, whereby interim injunction, in a pending suit for permanent injunction and declaration, has been granted in favour of plaintiffs. 
Learned counsel appearing for defendant-petitioners submits that the interim injunction, granted by the courts below, is illegal and without jurisdiction, inasmuch as the issue, raised in suit, would require declaration of the status of plaintiff-respondents over the suit property, which can only be granted by the revenue court, inasmuch as the property� is recorded as a bhumidhari. It is then contended that no declaration under section 143 of the U.P.Z.A. & L.R. Act has been granted, and in the absence thereof, nature of property would continue to be a land and the civil court will have no jurisdiction. Thirdly, it is contended that plaintiff-respondents' case is inconsistent inasmuch as three different source of ownership have been simultaneously claimed, and therefore, courts below have erred in granting interim injunction. 
This is opposed by learned counsel appearing for plaintiff-respondents, by contending that defendant-petitioners are claiming right in the property from Rani Victoria, who had filed original suit no.4 of 1951, in which decree based on compromise was passed in favour of ancestors of plaintiff-respondents. It is submitted that a finding, based upon appreciation of prima facie evidence, has been returned acknowledging plaintiffs' possession over the suit property, which has been found to be in the nature of abadi and that various constructions existing upon it. Learned counsel submits that by virtue of section 9 of the U.P.Z.A. & L.R. Act, such open land, which also exists, has been settled with plaintiffs, as being land appurtenant, and therefore, nature of the property was of abadi, for which the civil court has jurisdiction. Submission is that in view of the finding that plaintiff-respondents are in possession, the order of interim injunction cannot be impeached. 
Having considered the aforesaid submissions, this court finds that at this juncture,� only interim injunction matter was being decided by the courts below, and therefore,� finding, based upon final assessment of parties claim, based upon the evidence adduced at the stage of trial, is not liable to be returned. Only the primafacie case of the parties has to be looked into. For such purposes, courts below have found that in a previously instituted suit filed by Rani Victoria, from whom defendant-petitioners are claiming title, a decree of compromise had been passed, wherein the property was recognized as consisting of abadi, and a finding with regard to possession of plaintiffs has been returned, which is based upon appreciation of facts available on record. So far as the question with regard to jurisdiction of the civil court in the matter is concerned, it would depend upon the evidence, which is led by the parties before the civil court, and in view of the primafacie evidence that abadi existed upon said land from prior to abolition of zamindari, if civil court has entertained suit and granted interim injunction, no exeption can be taken to it. Further submission of learned counsel for petitioners that plaintiffs' case is inconsistent as different source for acquisition of right has been claimed are again issues, which would be open for assessment at the stage of trial, and if possession of plaintiffs has been found, as a matter of fact, the grant of interim injunction cannot be faulted. 
In view of the discussions made above, I am of the opinion that that the orders passed by the civil court, granting interim injunction in favour of the plaintiffs, does not suffer from any error of law, which may require any interference by this court. However, as triable questions have been raised and the suit is to be decided finally, it would be appropriate to modify the appellate court, by providing that none of the parties to the dispute shall create any third party interest over the suit property. Since suit itself remains pending since the year 2008, it would be appropriate to direct the trial court concerned to make all endeavours to conclude the proceedings of the Original Suit No.118 of 2008, without granting unnecessary adjournment to either of the parties. The suit would be decided finally, without being influenced by any finding returned on interim injunction matter by the courts below. 
Subject to the aforesaid modification, appellate order is maintained and this petition is consigned to record. Interim order, granted earlier, stands discharged. 
Order Date :- 4.5.2015 
Ashok Kr.