This petition under Article 227 challenged an appellate order modifying a temporary injunction. The High Court found the appellate court's view that land status requires evidence undisputed and dismissed the petition.
The writ petition was dismissed, upholding the appellate court's modification of the injunction.
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Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 4740 of 2019
Petitioner :- Smt. Kusumlata Respondent :- Pawan Kumar Rai And 2 Others Counsel for Petitioner :- Krishnaji Khare
Hon'ble Manoj Kumar Gupta,J.
The instant petition under Article 227 of the Constitution has been filed challenging the order dated 30.4.2019 by which the appellate Court has modified the order of temporary injunction granted by the trial Court.
The suit bearing No. 968/2018 was instituted by the petitioner against the defendant-respondents in respect of a piece of land alleged to be private rasta . The defendant-respondents contested the suit and denied that the suit property is private rasta of the plaintiff-petitioner. In fact, their specific case was that the suit property had been in use as rasta since last thirty years by the public at large. Their specific case is that Nagar Palika had also laid kharanja over it, which was not possible had it been a private rasta of the plaintiff-petitioner. The trial Court merely on the ground that a gate was in existence over the said rasta proceeded to grant temporary injunction restraining the parties from demolishing the gate and from raising new constructions over it or from changing the nature and character of the suit property. Aggrieved thereby, the defendant respondents filed appeal. The appellate Court after considering the pleading of the parties and the entire evidence on record held that the question as to whether the suit property is a private rasta of the plaintiff petitioner or is public rasta, as claimed by the defendant respondents is a mater of evidence, which could be decided only after evidence is led by the parties in the suit. The appellate Court in fact, agreed that the direction issued by the trial Court restraining the parties from
demolishing the gate or from changing the nature and character of the suit property, but it further held that since it is yet to be established that the suit property is private rasta of the plaintiff petitioner and therefore restrained the plaintiff petitioner from obstructing the passage of the defendants over the suit property by keeping the gate closed. To the above extent only, the order of the trial Court has been modified.
Learned counsel for the petitioner vehemently submitted that the suit property is private rasta of the petitioner and the trial Court was justified in granting an absolute injunction. He submitted that the appellate Court had erred in modifying the order of temporary injunction without setting aside the findings recorded by the trial Court.
This Court is unable to accept the submissions of learned counsel for the petitioner.
The appellate Court has in fact, as noted above, virtually maintained the order of the trial Court except for restraining the plaintiff petitioner from keeping the gate closed, as it has rightly held that the issue as to whether the suit property is private rasta or public rasta could be decided after evidence is led by the parties.
This Court does not find any illegality in the view taken by the appellate Court to warrant interference in exercise of supervisory power under Article 227 of the Constitution. The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J.)
Order Date :- 8.7.2019 AM/-
1 issue framed by the court
Whether the High Court should interfere under Article 227 with the appellate Court's modification of a temporary injunction regarding land status.
Smt. Kusumlata
Pawan Kumar Rai
Manoj Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
