Allahabad High Court
Munshi Lal vs Masood Faizal & 5 Others on 13 July, 2015
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 58
Case :- MATTERS UNDER ARTICLE 227 No. - 2827 of 2015
Petitioner :- Munshi Lal
Respondent :- Masood Faizal & 5 Others
Counsel for Petitioner :- B.M. Tripathi
Hon'ble Manoj Kumar Gupta,J.
The petitioner has filed a suit for permanent prohibitory injunction restraining the defendant-respondents from interfering in his possession over the suit property described at the foot of the plaint with letters A B C D and bounded on eastern side by half share of the second defendant comprising of plot no. 200, on the western side by plot no. 207, on the northern side by plot no. 41 belonging to defendants 2 to 6 and on the southern side by National Highway. According to the plaint allegations, the suit property is plot no. 208 admeasuring 0.04 Decimal. He also moved an application for temporary injunction. The trial court by an order dated 8.4.2010, rejected the application for temporary injunction after holding that the suit property is the land which the plaintiff had already sold to defendant no.1 and over which he is not in possession. The order was affirmed in appeal. These orders were subjected to challenge before this Court in writ petition no. 17940 of 2011 which was disposed of by order dated 29.3.2011, which is to the following effect :-
"Heard learned counsel for the petitioner.
The petitioner filed a suit for permanent injunction and the cancellation of the sale deed along with an application for interim relief.
Learned counsel for the petitioner submitted that the petitioner owned 160 Sq. mt. land out of which fraudulently a sale deed for 18.5 Sq. mt. land has been got executed by the defendants and, therefore, in the suit a prayer has been made for the cancellation of the said sale deed. Under the garb of sale of said land, the defendants want to grab other portion of the land and, therefore, the petitioner sought the injunction. The petitioner has sought the injunction in respect of entire 160 Sq. mt. land but neither the trail court nor the appellate court has considered this aspect of the matter and has only considered that portion of the land for which the said sale deed has been executed.
I have perused the impugned order. A perusal of the impugned order reveals that the appellate authority has considered only the claim of the petitioner in respect of the land which has been sold by the petitioner and not in respect of other land. It is also not clear whether such claim has been made or not.
In the circumstances, the petitioner is directed to move an application before the appellate authority in respect of his grievances. In case if any such application is moved, the appellate court is directed to consider the same in accordance to law after giving opportunity of hearing to the other side. So far as the order of the appellate authority in respect of which the sale deed has been executed, I do not find any error in the order.
With the aforesaid observations, the writ petition stands disposed of."
In pursuance of the liberty granted by this Court, the petitioner seems to have filed an application before the lower appellate court. On such application, the lower appellate court called for a fresh report from the Amin Commissioner. He submitted a report dated 23.1.2014, according to which the land of the plaintiff lies on the eastern and western side of the land which was transferred by him to the defendant no.1 for being used as rasta. The appellate court after considering the report of the Amin Commissioner had concluded that it is not clear as to how the defendant is causing interference after execution of the sale deed in his favour. The appellate court further noted that the property of the plaintiff lies on both sides of the land which was sold by the plaintiff to defendant no.1 for being used as rasta for egress and ingress to his own property. It is noted that from the evidence on record it is apparent that the suit property is in shape of a rasta, over which the defendant is in possession. The plaintiff is in possession of land on both sides of the rasta. There is no evidence that defendant is causing any interference over the other part of the land belonging to the plaintiff.
I have myself perused the plaint map and I find that the plaintiff had not disclosed the location of the land he had transferred in favour of defendant. It is apparent from the bare perusal of the Commissioner's report and the plaint map that the plaintiff had not properly identified the land sold by him to the defendant no.1 and in the absence thereof, it is not possible to identify the land which remains with the plaintiff after sale of part thereof in favour of defendant no.1. For claiming an injunction, the plaintiff should clearly identify the land of which he continues to be the owner and in regard to which injunction is being claimed. Since these material particulars have not been disclosed in the plaint, I do not find any illegality in the impugned order of the lower appellate court dated 23.2.2015, dismissing the appeal.
The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J.)
Order Date :- 13.7.2015
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