Ata Husain and 7 Others Vs Gulam Naki and 4 Others

A statement has been made by learned counsel for the rival parties that they do not propose to file any affidavit and the writ petition be decided on the basis of the documents available on record.

¶10

With the consent of the parties, the present petition is being decided at the fresh stage.

¶11

The case of the plaintiff-petitioners is that an Original Suit no.98 of 2024 came to be instituted before the Court of Civil Judge (Sr. Div.), Budaun against the defendant-respondents for declaration to the effect that the plaintiff be declared the owner of the property mentioned by letter 'A, B, C, D' and 'E, F, G, H' in red colour in plaint map and further relief for permanent injunction was prayed with respect to the property mentioned by letter 'A, B, C, D' and 'E, F, G, H' by red colour. As per the averments in the plaint, it was asserted that the plaintiffs are the owner in possession of plot nos. 180 and 182, as the said plots are ancestral and it was also asserted that the aforesaid Khasra number was being used as an abadi since long and plaintiff had got constructed the house over the same. As per the plaintiffpetitioners, between the both the Gatas, there existed 8 ft. wide rasta for ingress and egress, which is a private rasta of the plaintiff and it was further stated that the vacant part of Khasra no.182, which is show by letter no. 'A,B,C,D' and in Khasra no. 180 part shown by letter no. 'E, F, G, H' the grave of ancestors. On being noticed, the defendant-respondents filed their written statements denying the averments stating that the property in dispute

¶12

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was owned by the grandfather of the defendant-respondent no.4 Mustak Husain Kha and the father of Mustak Husain Khan was Kallan Khan, and one of the brothers Ashik Husain Khan. It was also stated that Mustak Husain Khan and his brother Ashik Husain purchased Khasra no. 128 by virtue of a registered sale deed dated 22.08.1911 and Khasra no. 123 was given new no. 182 in consolidation proceedings in that regard and as per the aforesaid sale deed Mustak Husain and Ashik Husain were having half share. Along with the said plaint, the application being 5Ga being a temporary injunction application came to be preferred restraining the defendants from taking illegal possession. The Court of Civil Judge (Sr. Div.) Budaun on 30.05.2025 proceeded to pass an order for maintenance of status quo.

¶15

Aggrieved against the same, defendant-respondents preferred a Misc. Appeal no.22 of 2025, Gulam Naki and others vs. Ata Husain , in which the Court of District Judge, Budaun on 25.03.2026 rejected the temporary injunction application vide order dated 30.05.2025, against which the present petition has been preferred.

¶16

Learned counsel for the plaintiff-petitioners has sought to argue that the order of the appellate court cannot be sustained for the simple reason that in case the appellate court was of the opinion that there happened to be a counter claim and an application for injunction, which has not been considered then the matter ought to have been remitted back to the trial court to decide the temporary injunction application after considering the counter claim and the contentions set forth by the defendant-respondents. Further submission is that even on the basis of the perusal of the Khatauni justifying the fact that the plaintiff-petitioners were in probation and the owners of the land, the trial court had accorded injunction and further at the stage of injunction, the trial court was not supposed to go into the questions relatable to the title and the sale deed in that regard.

¶17

Sri Lalit Kumar, learned counsel for the defendant-respondents on the other hand submits that the order passed by the trial court cannot be faulted for the simple reason that the appellate court has evaluated the entire records and had come to the conclusion that there happened to the sale deed in favour of the defendant-respondents and further the trial court on the basis of the superfluous observations that too prima facie accorded injunction without considering the import and the impact of the contentions raised and

¶18

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¶20

the claim set up in the counter claim. Further while relying upon the judgment of this Court in Uttar Pradesh State Sugar Corporation Limited vs. Raza Buland Sugar Company Rampur , (1985) ALJ 107 , it is contended that while granting injunction under Order 39 Rule 1 and 2, the Court cannot grant temporary injunction on the basis of balance of convenience without recording a finding regarding plaintiff’s possession. Contention is that the order in question cannot be sustained.

¶21

I have heard the submissions so made across the Bar and perused the records carefully.

¶22

Apparently, a suit came to be instituted by the plaintiff-petitioners for a declaration that the plaintiff be declared owner in possession of the demised property and a permanent injunction. Along with the said suit, an application under Order 39 Rule 1 and 2 was also preferred. During the pendency of the said suit, a counter claim was filed by the defendant-respondents. The trial court by virtue of the order dated 30.05.2025 granted an order of status quo, against which a Misc. Appeal came to be preferred. The contention of the learned counsel for the defendant-respondent is that without recording the finding regarding plaintiff’s possession, the injunction order has been passed. However, on the contrary, according to the plaintiff-petitioners there happened to be Khatauni showing the ownership of the plaintiff-petitioners. The appellate court in the order impugned in para-11 has observed as under:-

¶23

“ 11- इस ्ऺकरण का एक अन्य महत्वपूणर् तथ्य यह भी है िक संपूणर् आलोच्य आदेश के अवलोकन से यह िविदत होता है िक मा्ऴ उपरो्व सीिमत िववेचना के आधार पर ही िव्षान िवचारण न्यायालय ्षारा वादीगण का ्ऺ थम दृ्िया केस िस्ध होना मान िलया गया एवं उ्व आधार पर ही सुिवधा का संतुलन एवं अपूणर्नीय ्षित के िबन्दु को अिभिनणर्त कर िदया गया है, जबिक संपूणर् आलोच्य आदेश में िकसी भी प्ष के अध्यासन संबंधी कोई िनष्कषर् िव्यमान नहीं है। बहस के दौरान ्ऺत्यथर्गण के िव्षान अिधव्वा से तत्संबंध में िविनिद्ि रूप से पूछे जाने पर उन्होंने भी स्वीकार िकया िक वास्तव में संपूणर् आलोच्य आदेश में िव्षान िवचारण न्यायालय ्षारा अध्यासन के िबन्दु पर कोई िनष्कषर् ही नहीं िदया गया है। ऐसे िनष्कषर् के अभाव में सुिवधा के संतुलन एवं अपूणर्नीय ्षित संबंधी िबन्दु का िनराकरण िकया जाना संभव नहीं है एवं यथािस्थित का आदेश पािरत करना ्ि ावहािरक रूप से पिरणामहीन है। माननीय म्शास उच्च न्यायालय ्षारा डी० एल्बटर् बनाम लिलता एवं अन्य 1989 सीसीसी 559 (म्शास) के ्ऺ करण में अवधािरत िकया गया है िक जहाँ इस ्ऺकार की ्ऽांित ्ऺचिलत हो एवं दोनों ही प्ष अपना-अपना अध्यासन होना बताते हों, न्यायालय को यथािस्थित का आदेश पािरत नहीं करना चािहए। इसी आशय की िविध ्ि वस्था मध्य्ऺदेश उच्च न्यायालय ्षारा गनेशा बनाम जगन्नाथ एवं अन्य 2021 (1) सीसीसी 100 (मध्य ्ऺदेश) में पािरत की गयी है।”

¶24

The operative portion of the same reads as under:-

¶25

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¶27

“अपीलाथर्गण की ओर से ्ऺस्तुत यह ्ऺकीणर् िसिवल अपील स्वीकार की जाती है। मूलवाद संख्या98/2024 अता हुसैन आिद बनाम गुलाम नकी आिद के ्ऺकरण में िसिवल जज (सी०िड०), बदायूँ के ्षारा पािरत आदेश िदनांिकत-30-05-2025 अपास्त िकया जाता है, पिरणामतः ्ऺाथर्ना-प्ऴ 5 ग बाबत अस्थाई िनषेधा्ञा िनरस्त िकया जाता है। इस अपीलीय प्ऴावली को िनयमानुसार मूल प्ऴावली में संिविलत िकया जाये।”

¶28

In the opinion of the Court, in case, there was any discrepancy and the deficiency in the order of the trial court that the counter claim was not considered and the aspects relating to the possession were also not taken into account, then too it was a perfect case wherein the matter ought to have been remitted back to the trial court to pass a fresh order. Learned counsel for the defendant-respondents submitted that if it being so the matter be remitted back in that regard.

¶29

Accordingly, without delving further into the matter, the order dated 25.03.2026 passed by the District Judge, Budaun in Misc. Civil Appeal No. 22 of 2025, Gulan Naki and others vs. Ata Husain and others is set aside. Matter stands remitted back to the trial court to pass a fresh order on the temporary injunction application strictly in accordance with law by 29.05.2026.

¶30

Since the parties are represented through their counsel, thus it would be deemed that they have full knowledge of the order. No unnecessary adjournments shall be granted and in case, adjournment is granted, same shall not be beyond 3 days at a stretch. By saying so, this Court has not entered into the merits of the matter. All contentions are left open to be raised by the respective parties.

¶31

Certified copy of the order be served by both the parties by 11.05.2026.

¶32

May 5, 2026

¶33

N.S.Rathour

¶34

(Vikas Budhwar,J.)

¶35

Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad

Ata Husain and 7 Others v. Gulam Naki and 4 Others

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Ata Husain and 7 Others v. Gulam Naki and 4 Others

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