Dismissed

Aditya Kumar Mishra @ Aditya Kumar v. District Judge Barabanki and 2 Others

Allahabad HC29 Jan 2024/378/2024

Case brief

AI extract

What is this about?

Petitioner challenged rejection of interim injunction under Order 39 CPC in property dispute. High Court held inferior courts correctly found petitioner failed to prove prima facie case due to contradictory pleadings on partition. Writ petition dismissed.

What did the court decide?

Petition dismissed; respondent's order dated 04.09.2023 affirmed; costs made easy.

Aditya Kumar Mishra @ Aditya Kumar Vs District Judge… — Property and Title | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:7914

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Court No. - 8

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Case :- MATTERS UNDER ARTICLE 227 No. - 378 of 2024

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Petitioner :- Aditya Kumar Mishra @ Aditya Kumar Respondent :- District Judge Barabanki And 2 Others Counsel for Petitioner :- Kuldeep Kumar Srivastava,Arun Kumar Srivastava,Pankaj Verma

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the petitioner.

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By means of the instant petition, the petitioner assails the order dated 04.09.2023 passed by the District Judge, Barabanki in Misc. Civil Appeal No.39/2023 whereby the lower Appellate Court has affirmed the order dated 03.05.2022 passed by Civil Judge (Junior Division), Court No.13, Barabanki and the application preferred by the petitioner seeking injunction under Order 39 Rules 1 and 2 CPC has been rejected.

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The submission of the learned counsel for the petitioner is that the plaintiff-petitioner had filed a suit seeking a decree of permanent injunction against the private-respondent is also of the same family. It was pleaded that the property belonged to the ancestors. Thereafter, it has been pleaded that on account of an oral settlement, the parties had divided the property and each was in his occupation of the portion as allotted. It was also pleaded that the defendant-private-respondents were attempting to encroach upon the land of the plaintiff-petitioner which is sehan and in the aforesaid circumstances, the suit was filed along with an application under Order 39 Rules 1 and 2 CPC.

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Upon contest, the application under Order 39 Rules 1 and 2 CPC which came to be dismissed by means of the order dated 03.05.2023 which was assailed by the petitioner in an appeal under Section 43, Rule 1(r) CPC which has also been dismissed.

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It is urged that since the defendants are attempting to encroach upon the land of the petitioner, accordingly, interim protection of the property was essential which has not been considered by the two Courts which has prompted the petitioner to file the instant petition.

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Having considered the aforesaid submissions and from the perusal of the material on record, it appears that the trial Court

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while considering the application under Order 39 Rules 1 and 2 CPC found that the contents of the plaint were not made out in terms of the spot position which was brought on record by the Amin Commissioner and, therefore, the application under Order 39 Rules 1 and 2 CPC was rejected. The findings have been affirmed by the lower Appellate Court.

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In light of the aforesaid findings, specifically noticing paragraph 5 to 7 of the plaint where at one place the petitioner states that there is an oral family settlement and in terms whereof each party was allotted his share and later it has also been pleaded that till date there is no partition. The pleadings appeared to be contrary and even otherwise from the material on record, two Courts have recorded a finding that the petitioner could not establish his prima-facie case.

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These are pure findings of fact which this Court in exercise of powers under Article 227 of the Constitution of India is not inclined to interfere with.

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Since, the application for interim injunction has been rejected, the petitioner has ample opportunity to lead evidence in support of his case. Accordingly, this Court does not deem it proper to entertain the petition which is dismissed .

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Costs are made easy.

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Order Date :- 29.1.2024 Rakesh/-

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Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

Aditya Kumar Mishra @ Aditya Kumar v. District Judge Barabanki and 2 Others

Case brief

What is this about?

What did the court decide?

Aditya Kumar Mishra @ Aditya Kumar v. District Judge Barabanki and 2 Others

Case brief

What is this about?

What did the court decide?

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