Dismissed

Narain Das v. Kamal and 5 Others

Allahabad HC21 Jul 2023A227/6219/2023

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the High Court declined to interfere with lower court orders refusing a temporary injunction regarding a disputed plot, viewing the property as unidentifiable and noting pending revenue demarcation proceedings.

What did the court decide?

The petition under Article 227 was dismissed, declining interference in the orders refusing temporary injunction.

Narain Das Vs Kamal and 5 Others — Property and Title | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:145937

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Court No. - 1

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Case :- MATTERS UNDER ARTICLE 227 No. - 6219 of 2023

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Petitioner :- Narain Das Respondent :- Kamal And 5 Others Counsel for Petitioner :- Rahul Sahai

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Hon'ble Jayant Banerji,J.

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Heard learned counsel for the petitioner.

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This petition under Article 227 of the Constitution of India has been filed seeking the following reliefs:-

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"(i) Issue a suitable order, or direction for setting aside the judgment/order dated 5.4.2023 passed by the Additional District Judge, Court No.10, Mathura in Misc. Civil Appeal No.91 of 2022 (Narain Das and another Vs. Kamal and others) as well as judgment/order dated 29.11.2022 passed by the Civil Judge (Junior Division), Mathura in O.S. No.96 of 2022 (Narain Das Vs. Kamal and others) (Annexure-1 & 2 to the petition).

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(ii) Issue a suitable order or direction for allowing the application for temporary injunction 6C/7c and/or of restraining the defendants from interfering in the peaceful possession of the plaintiff/petitioner over the suit property described at the foot of the plaint and earmarked by letters A,B,C,D,E,F."

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It appears that Original Suit No.96 of 2022 was filed in the court of the Civil Judge (Junior Division), Mathura by the plaintiff-petitioner against the defendant-respondents seeking a relief of permanent injunction with respect to the south-eastern corner of Plot No.604 area 0.498 hectares pertaining to Khata No.163 situate in Mauja Ganeshra, Tehsil & District Mathura, which was stated to be shown in the enclosed map with alphabets 'A', 'B', 'C', 'D', 'E', 'F'. In the present petition, the plaint map has not been enclosed. An application for temporary injunction was filed and objections were invited. In the objections, it was pointed out that the part of the plot in respect of which the injunction is sought actually belongs to plot of the defendant no.1 pertaining to the Khasra No.609 having an area

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of 1.153 hectares which is in the ownership and possession of the defendant no.1. It was also stated that proceedings for correction of the map were instituted under Section 38 (1) of the U.P. Revenue Code, 2006 before the Collector.

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The trial court observed that it is admitted by the parties that to the east of the Plot No.604, Plot No.609 exists. It was noted that whether actually the part marked in the map as 'A', 'B', 'C', 'D', 'E', 'F' falls in Plot Nos.604 and 609, is a matter of evidence. It was noted that as per the case of the plaintiff, the plot in dispute has been demarcated but no documents were filed with regard to the measurement and demarcation done and which have not been mentioned even in the plaint map. Accordingly, by the impugned order dated 29.11.2022, the application for temporary injunction was rejected. The plaintiff filed an appeal, being Misc. Civil Appeal No. 91 of 2022, which was dismissed by the impugned order dated 05.04.2023 by the Additional District Judge, Court No.10, Mathura.

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The appellate court perused the sale-deed dated 22.07.2021 and a rectification deed dated 07.12.2022. It was observed by the Court that in that sale deed, the boundaries of the sold plot were shown and it was found that the boundaries and the measurements differ from those mentioned in the suit map. It was further noted that proceedings under Section 38(1) of the Code, 2006 in respect of Plot No.609 were already in progress and the issue with regard to demarcation is under consideration before the revenue court. It was observed that the plaintiffappellant has not disclosed the correct position of the land in respect of which the injunction is sought or its area. Therefore, the property in dispute is unidentifiable. Accordingly, it was held that neither prima facie case nor balance of convenience exist in favour of the plaintiff and neither would any irreparable

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injury be caused in case injunction is refused. The injunction was, accordingly, refused and the appeal was rejected.

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It is the contention of learned counsel for the petitioner that since the Courts, while considering the temporary injunction and the appeal, came to a conclusion that Plot Nos. 604 and 609 are adjacent to each other and that there was a dispute with regard to an area of Plot Nos. 604 and 609 as to in which plot the property in dispute fell, then it was essential for the Courts to have passed an injunction for maintaining status quo.

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As observed above, the plaint map has not been filed with this petition. Proceedings under Section 38 of the Code, 2006 are pending before the competent authority. A complete procedure is provided under Section 38 of the Code, 2006 including a remedy of appeal. Even though the proceedings under Section 38 are summary in nature, outcome would definitely have a bearing on the present case. Passing of an order of status quo in the facts and circumstances of the case may result in irreparable injury to the defendants and certainly would not balance the conveniences between the parties. Under the circumstances, since the Courts have held that neither the balance of convenience nor the aspect of irreparable injury exists in favour of the plaintiff, interference in the order impugned is declined.

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This petition is, accordingly, dismissed .

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The Registrar (Compliance) is directed to send a copy of this order to the concerned court within fifteen days.

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Order Date :- 21.7.2023/SK

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(Jayant Banerji, J.)

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Digitally signed by :- SUSHEEL KUMAR High Court of Judicature at Allahabad

Narain Das v. Kamal and 5 Others

Case brief

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Narain Das v. Kamal and 5 Others

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