Allahabad High Court
Sukhpal Singh vs State Of U.P. & Others on 25 April, 2011
Bench: Satya Poot Mehrotra, S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- WRIT - C No. - 18739 of 2011
Petitioner :- Sukhpal Singh
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Anil Bhushan
Respondent Counsel :- C. S. C.
Hon'ble Satya Poot Mehrotra,J.
Hon'ble S.C. Agarwal,J.
The petitioner has filed the present writ petition making the following prayers:
"(i) Issue a writ, order or direction in the nature of mandamus commanding to District Magistrate to take decision in terms of judgment reported 2001( RD) 69 Hinch Lal Tiwari Vs. Kamla Devi and others.
(ii) Issue a writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(iii) To allow the writ petition and award the cost in favour of the petitioner."
From the averments made in the writ petition, it appears that the dispute pertains to plot No.474 situated in village Mahmoodpur, Pargana Hapur, Tehsil Hapur, district Ghaziabad. The respondent No.4 along with certain other persons ( plaintiffs) filed a Suit being Civil Suit No.107 of 2002, in regard to the land- in-question in the Court of Civil Judge ( Junior Division), Hapur, Ghaziabad. The petitioner herein was impleaded as the defendant No.4 in the said Suit. Issues were framed in the said Suit. Issue No.6 was as to whether the Civil Court had no jurisdiction to hear the Suit. The Trial Court by the order dated 8.5.2006 decided Issue No.6 holding that the Civil Court had no jurisdiction to hear the said Suit, and accordingly directed the plaint to be returned to the plaintiffs for presentation before the competent court. Thereupon, the plaintiffs in the said Suit filed an appeal being Misc. Civil Appeal No.30 of 2006.
Learned Additional District Judge, Hapur, Ghaziabad by the Judgment and Order dated 27.01.2007 allowed the said Appeal and set- aside the finding recorded by the Trial Court on Issue No.6 and remitted the matter to the Trial Court for deciding Issue No.6 again in the light of the conclusions mentioned in the said Judgment and Order dated 27.1.2007.
The petitioner herein (defendant No.4 in the said Suit) thereupon filed a Writ Petition being Civil Misc. Writ Petition No.428 of 2007 before this Court, wherein an interim order dated 14.5.2007 was passed staying the operation of the said Judgment and Order dated 27.1.2007. The said Writ Petition is stated to be still pending before this Court.
It may be mentioned that the petitioner, who was defendant No.4 in the said Suit, raised the plea in the said Suit that the land-in-question was recorded as "Johar"(pond) and the said land was "Johar" (pond). Thus, it will be be noticed that the controversy regarding the land-in-question being Johar (pond) is the subject matter of the said Suit, namely Civil Suit No.107 of 2002, in regard to which a Writ Petition being Civil Misc. Writ Petition No.428 of 2007 is pending before this Court.
The prayer made in the present Writ Petition is for directing the District Magistrate to take decision in the matter in terms of the judgment of the Supreme Court in the case of Hinch Lal Tiwari Vs. Kamala Devi and others, 2001 ( 92) RD 689. In the said decision, their Lordships of the Supreme Court gave various directions regarding restoration of the ponds in the village.
As noted above, the controversy/ question regarding the land-in- question being Talab (pond) is the subject- matter of the aforesiad Civil Suit No.107 of 2002 in regard to which, the Writ Petition being Civil Misc. Writ Petition No.428 of 2007 is pending before this Court in respect of the Judgment and Order dated 27.01.2007 passed in respect of Issue No.6 framed in the said Suit.
In the circumstances, we are of the opinion that giving any direction in the present Writ Petition, would amount to pre-empting the decision on the aforesaid controversy/ question in the said Suit and the said earlier Writ Petition filed by the petitioner before this Court.
In view of the above, we are not inclined to exercise our Writ Jurisdiction under Article 226 of the Constitution of India in the present case.
It will further be noticed that the controversy involved in the present case is basically a private dispute between the petitioner and the respondent No.4, and such dispute can appropriately be decided after taking evidence, oral and documentary, in appropriate proceedings. Such dispute cannot appropriately be decided in the Writ Petition.
In view of the above, the Writ Petition lacks merits and the same is liable to be dismissed.
The Writ Petition is dismissed accordingly.
Order Date :- 25.4.2011
SFH
