Ram Dulari and 3 Others Vs State of U.P. Thru. Prin. Secy. Revenue Deptt. and 3 Others

Heard Ms. Nisha Srivastava, learned counsel for petitioners, learned State counsel for opposite party No.1 and Mr. Alok Kumar Tripathi, learned counsel for opposite party No.4.

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Learned counsel for petitioners is granted liberty to convert cause title of petition, under Article 226 of the Constitution of India to that under Article 227 of the Constitution of India with consequential amendments also to be incorporated in the body of petition including prayer clause.

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Opposite parties No.2 & 3, merely being proforma party, notice is dispensed with.

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Short counter affidavit and rejoinder affidavit thereto filed today is taken on record.

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Petition has been filed challenging order dated 09.10.2024 passed in Civil Appeal No.50 of 2023 arising out of Original Suit No.447/2022 whereby the application for grant of temporary injunction filed by opposite party No.4 as plaintiff in the suit proceedings has been allowed at the first appellate stage. Further prayer for a direction to opposite parties not to disturb peaceful possession of petitioners over the land in question and for maintaining status quo has also been sought.

¶14

It is submitted that the aforesaid Original Suit No.447 of

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2022 was filed by opposite party No.4, Shyam Lal for seeking permanent injunction over plot No. 1377kha having an area of 0.0253 hectares situated in the village in question. Alongwith the plaint an application for temporary injunction was also filed which was rejected by means of order dated 01 August, 2023 but Civil Misc. Appeal preferred by plaintiff has been allowed by means of impugned order.

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It is submitted that by means of order dated 01 August, 2023, the temporary injunction application has been rejected primarily on the ground that the property over which injunction was being sought was not identifiable and that there were discrepancies in the description of property pertaining to area in the plaint and in the commission report. It is therefore submitted that once the property itself was unidentifiable, there was no occasion for the first appellate court to allow the injunction. It is further submitted that although petitioners No.1 & 2 are registered title holders over the property in dispute, they were not made a party to the proceedings at the time of presentation of plaint and subsequently after passing of impugned order, an application for impleadment has been filed, which is still pending consideration.

¶17

Learned counsel for opposite party No.4 has refuted submissions advanced by learned counsel for petitioners and submits that petitioners No. 1 & 2 were not made a party to the suit proceedings since they are recorded as tenure holders over a different property and since possession of plaintiff over his portion of land was being disturbed only by petitioners No.3 and 4, only they were impleaded in the suit proceedings. It is submitted that only once written statement was filed by defendants did it come to knowledge of plaintiff with regard to alleged ownership of the adjoining plot due to which now petitioners No. 1 & 2 have been sought to be impleaded in suit

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proceedings. It is further submitted that the first appellate court has clearly recorded that the property in fact was identifiable not only on the basis of averments made in the plaint but also on the basis of commission report, which was accepted as well as admission on the part of defendants in the written statement/objection.

¶19

Upon consideration of submissions advanced by learned counsel for opposite parties and perusal of material on record, it is evident that suit was filed by opposite party No.4 for permanent injunction impleading only the petitioners No. 3 & 4, who are husbands of petitioners No. 1 & 2, as defendants in the suit proceedings. It is also evident from a perusal of the impugned order that prior to passing of any order on temporary injunction, commission report was obtained and was accepted subject to evidence. The commission report evidently indicates the boundaries of plot No.1377Kha over which the plaintiff/opposite party No. 4 is claiming ownership and possession. The first appellate court has also adverted to written statement filed by both the husbands of petitioners No.1 & 2 clearly admitting the ownership of plaintiff over the plot No.1377 Kha having an area of 0.0253 hectares. It is on that basis that the order passed by trial court dated 01 August, 2023 was interfered with.

¶20

From a perusal of the order dated 01 August, 2023, it appears that the trial court also has adverted to separate portions of plot No.1377 and also indicates in paragraph 14 that the plaintiff is recorded as tenure holder over plot No. 1377 Kha for which relief was claimed in the plaint. The trial court has held that the property was unidentifiable due to a certain discrepancy in area over the plot in question. However, trial court does not appear to have adverted to the written statement filed by defendants admitting the claim of plaintiff. The boundaries of

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the plot in question have also been addressed by the trial court in paragraph 16 of the order.

¶22

Prima facie, it appears that the property in question over which relief has been claimed in the plaint has been found to be established at the first instance and subject to evidence not only by the revenue records but also by the commission report and admission of the defendants, who happen to the husbands of petitioners No. 1 & 2. It is not the case of petitioners No.1 & 2 that they are having inimical relationship with their husbands and therefore such an admission was required to be considered by the trial court.

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Even otherwise, the interim injunction has been granted only against the defendants of the suit and in case the petitioners No. 1 & 2 are not a party to the suit proceedings, obviously the temporary injunction so granted would not apply to them and extension of the temporary injunction to petitioners No.1 & 2, if they are impleaded, would be applicable only after consideration of their objections to the application for temporary injunction.

¶24

In such circumstances as indicated herein above, as per prima facie findings recorded by the first appellate court and ignorance thereof by the trial court, this Court does not find any occasion to interfere with the order impugned.

¶25

In view of aforesaid, and subject to observations made herein above, without interfering with the order impugned, the petition stands disposed of.

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Order Date :- 20.2.2025

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Reena/-

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(Manish Mathur,J.)

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Digitally signed by :- REENA KANNAUJIYA High Court of Judicature at Allahabad, Lucknow Bench

Ram Dulari and 3 Others v. State of U.P. Thru. Prin. Secy. Revenue Deptt. and 3 Others

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Ram Dulari and 3 Others v. State of U.P. Thru. Prin. Secy. Revenue Deptt. and 3 Others

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