Allahabad High Court
Ram Dhani Yadav And 2 Others vs Ram Raj Yadav And 7 Others on 6 August, 2014
Bench: Abhinava Upadhya
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 26
Case :- WRIT - C No. - 40452 of 2014
Petitioner :- Ram Dhani Yadav And 2 Others
Respondent :- Ram Raj Yadav And 7 Others
Counsel for Petitioner :- G.S. Yadav,B.S. Yadav
Hon'ble Abhinava Upadhya,J.
By means of this writ petition the petitioners have come up to this Court challenging the order of the trial court passed on the application under Order XXXIX Rule 1 and 2 CPC by which the application of the petitioner was rejected. Against the aforesaid order the petitioner preferred an appeal, which has also been rejected.
The petitioners had filed a suit for permanent injunction being Suit No. 92 of 2005 for restraining the defendants from interfering with the possession over the property in question. The interim injunction was granted in favour of the petitioners on 10.2.2005. It seems that the defendants violated the interim injunction and, therefore, the petitioners filed an application under Order XXXIX Rule 2-A CPC. Upon this application a survey was conducted through court appointed Commission. It submitted its report on 4.6.2005 and reported the possession of the petitioners over the property in question and also narrated that there were two toilets on the property which is said to be School property. It is alleged that the defendants demolished the aforesaid toilets in violation of the injunction order and, therefore, the petitioners again filed an application under Order XXXIX Rule 2-A CPC and second commission was issued on 10.7.2005 which reported that the debris of toilets were found on the spot. It is submitted that said application under Order XXXIX Rule 2-A CPC is still pending. However, by the impugned order dated 27.9.2006 interim injunction of the petitioners were rejected holding that the petitioners were not in possession over the property in question. The appellate court also upheld the order of the trial court and rejected the application.
According to the learned counsel for the petitioners, the order rejecting the application is based on perverse finding which is against two survey commission report. In first survey report it was found that there were two toilets on the property in question and the petitioners were in possession and in the second survey report it was found that the said two toilets have been demolished and debris were found on the spot.
The matter requires consideration.
Issue notice to respondents returnable at an early date for which learned counsel for the petitioners will take steps within a week.
List after service of notice.
Till the next date of listing, the parties are directed to maintain status quo.
Order Date :- 6.8.2014
SKM
