Disposed

Subhash Chand Gupta v. Sanjay Kundalani and 2 Others

Allahabad HC9 Jul 2018CLRE/140/2018

Case brief

AI extract

What is this about?

Revision against an order declining to interfere in a suit where defendants raised constructions violating an interim injunction. Court held trial court must first conduct a survey and amend plaint to determine exact violation before granting restoration of status quo.

What did the court decide?

Revision disposed of with direction to trial court to endeavour to decide the suit expeditiously, preferably within six months.

Subhash Chand Gupta Vs Sanjay Kundalani and 2 Others — Property and Title | Allahabad HC (2018)

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Court No. - 9

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Case :- CIVIL REVISION No. - 140 of 2018

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Revisionist :- Subhash Chand Gupta Opposite Party :- Sanjay Kundalani And 2 Others Counsel for Revisionist :- Amit Kumar Mishra Counsel for Opposite Party :- Sudeep Harkauli

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Hon'ble Anjani Kumar Mishra,J.

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Caveat has been filed on behalf of the respondent nos. 1, 2 and 3 by Shri Sudeep Harkauli, who states that he does not propose to file any counter affidavit. Accordingly I am deciding the revision finally, after hearing counsel for the parties.

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The instant revision is directed against the order dated 22.03.2018 passed by the Additional Civil Judge, (Senior Division), Agra on an application filed by the plaintiff revisionist for restoration of status quo ante after demolishing some constructions raised by the defendants.

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It was alleged that the defendants have raised constructions in violation of an interim injunction granted in the suit which had been modified by the High Court in a First Appeal From Order.

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The suit of the plaintiff-revisionist was for permanent injunction regarding plot No. 808M. An interim injunction was granted as regards this plot which was subsequently modified by the High Court on the ground that prima facie the defendant had entitled to 68 sq. yards of this plot. They were, therefore, permitted to raise constructions over this 68 sq. yards during the pendency of this suit at their risk.

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After constructions were raised, the application was filed that the order of the Courts had been violated inasmuch as the constructions had been raised beyond the 68 sq. yards of plot No. 808M, regarding which permission to raise constructions had been granted.

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This application has been disposed of by the trial court observing that it is open for the plaintiff to seek an amendment in the plaint regarding the subsequent developments and that the issue would be decided thereafter because in any case the constructions were at the risk of the defendants subject to the final decision of the suit.

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In my considered opinion, the application filed by

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the plaintiff revisionist could have been allowed only on a finding that the defendant had raised constructions over an area of plot No. 808 beyond 68 sq. yard regarding which the High Court in FAFO had found them to have a prima facie title. No such finding has been returned in the order, impugned.

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In fact, the trial court has observed that it is not clear whether the disputed constructions have been raised over the land which the plaintiff claims or over the land regarding which the defendants have a sale deed in their favour.

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Counsel for the revisionist has referred to the Amins' report in support of his contentions. This report, in my considered opinion, is only a report regarding the spot position.

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To determine whether or not the constructions made are confined to the 68 sq. yards, claimed the defendant, or they are beyond it, a proper survey, is absolutely essential. Only by a survey can this question be decided one way or the other. It is not in dispute that no survey report is available on record.

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Under the circumstances, no useful purpose is going to be served by interfering with the impugned order. In my considered opinion, the observations that have been made by the Court below need to be followed by the plaintiff. Not only should the plaintiff incorporate by an amendment, the subsequent developments in the suit,, he should also seek a survey of the disputed land to establish his case of violation, if any, of the order of the High Court in FAFO.

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Under the circumstances, this revision is disposed of with a direction to the trial court to endevour to decide the suit expeditiously, preferably within a period of six months from the date a certified copy of this order is filed before it.

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Order Date :- 9.7.2018 Priyanka

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Digitally signed by ANJANI KUMAR MISHRA
DN: C=IN, O=Personal,
PostalCode=211001, S=Uttar
Pradesh, Phone=f6e3ce979d8983acfc0b3ea04
ANJANI KUMAR 9885bf64ad5bbb33050e3dfe3e210927d94f413, SERIALNUMBER=004ee64f25f9f36f
MISHRA 85dbdc71f5b0ec1e2f0938431e25dbb
adc93823915b36c6f, CN=ANJANI KUMAR MISHRA
Reason: I am the author of this
document
Location:
Date: 2018-07-09 15:20:44

Subhash Chand Gupta v. Sanjay Kundalani and 2 Others

Case brief

What is this about?

What did the court decide?

Subhash Chand Gupta v. Sanjay Kundalani and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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