Maheshwar Pratap Shahi vs State Of U P And 5 Others
2021 Latest Caselaw 3006 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 

 
Case :- WRIT - C No. - 5923 of 2021
 

 
Petitioner :- Maheshwar Pratap Shahi
 
Respondent :- State Of U P And 5 Others
 
Counsel for Petitioner :- Swetashwa Agarwal,Katyayini
 
Counsel for Respondent :- C.S.C.,Sudhir Bharti
 

 
Hon'ble Prakash Padia,J.

Heard counsel for the petitioner and perused the record.

The petitioner has preferred present writ petition inter-alia with the following prayers :-

"i. Issue an appropriate writ, order or direction in the nature of Certiorari to call for the records of the case and quash the impugned Order dated 13.03.2020 (Annexure No.19) passed by the Respondent No.3- Additional Commissioner (Judicial) 2nd Gorakhpur Division, Gorakhpur, in Appeal being Case No. 1098/2018 'Maheshwar Pratap Shahi Vs. Navendra Pratap Shahi & Another'.

ii. Issue an appropriate, order or direction to the parties to maintain status-quo over the land in question, so as to preserve the suit property during the pendency of the appeal."

The facts in brief as contained in the writ petition are that the property in dispute is situated at Aarazi No.649 (Khata No. 411) area 5.403 hectares situated at Village-Tamkuhi Raj, Tappa Dhuria Vijaypur, District Kushinagar, of which petitioner and Navendra Pratap Shahi/respondent no.5 are the co-sharers in possession having transferable rights. The aforesaid property constituted two equal parts and is recorded as such in Khatauni as 649 Ka (2.703 hec.) and 649 Kha (2.700 hec.) respectively. From perusal of the Khatauni it appears that Arazi No.649 is not a "Minjumla Number" on record, and is in fact the holding of the petitioner and the respondent as co-sharers.

It is stated in paragraph 6 of the writ petition that there is no division of the land in question on the spot of which the petitioner and respondent no.5 are co-sharer. In paragraph 7 of the writ petition it is stated that private respondent no.5 namely Navendra Pratap Shahi illegally in agreement with one Vindra City Ventures Pvt. Ltd. started interfering with the peaceful possession of the petitioner upon the aforesaid land in question and started changing the nature of the land by raising constructions and started creating 3rd party rights. A suit was preferred by the petitioner under Section 116 of the U.P. Land Revenue Code, 2006 on 01.06.2018 before the respondent no.4 namely Sub Divisional Officer, Tehsil-Tamkuhi Raj, District Kushinagar. The same was registered as Case No.04434 of 2018 (Maheshwar Pratap Shahi Vs. Navendra Pratap Shahi and another). Along-with the said suit an application for interim injunction was also filed with the prayer to direct the parties to maintain status quo. The respondent no.5 filed his objection on 04.06.2018 relating to the maintainability of the aforesaid suit. The respondent no.4 rejected the entire suit itself vide judgement and order dated 04.06.2018 on the ground that the suit filed under Section 116 of the U.P. Land Revenue Code, 2006 is not maintainable and in the facts and circumstances the suit is maintainable only under Section 30(2) of the U.P. Land Revenue Code, 2006. Aggrieved against the aforesaid, the petitioner has preferred appeal before the respondent no.3 namely Additional Commissioner (Judicial), Gorakhpur Region, Gorakhpur along-with an application for grant of interim injunction. The same was registered as Case No.01098 of 2018. The aforesaid appeal was admitted by the respondent no.3 on 28.06.2018 but the application for grant of interim injunction was rejected. Aggrieved against the aforesaid petitioner preferred the revision as provided under Section 210 of the U.P. Land Revenue Code, 2006 before the Board of Revenue, U.P. at Lucknow. The same was registered as Revision No. REV/1659 of 2018 (Maheshwar Pratap Shahi Vs. Navendra Pratap Shahi and another). Since Appellate Court/Additional Commissioner was in a hot haste to decide the appeal the petitioner preferred a transfer application before the Board of Revenue, U.P. at Lucknow under Section 212 of the U.P. Land Revenue Code, 2006 on 26.2.2019. On the application notices were issued on 12.3.2019 and the court below/appellate court was restrained to take a final decision in the matter. Ultimately the aforesaid revision was rejected by the Board of Revenue, U.P. at Lucknow vide judgement and order dated 02.12.2019. Aggrieved against the aforesaid, petitioner approached this Court by filing Civil Misc. Writ Petition (B) No.412 of 2020 (Maheshwar Pratap Shahi Vs. State of U.P. and others). The aforesaid writ petition was finally decided by a Coordinate Bench of this Court vide judgement and order dated 13.2.2020. The order dated 13.2.2020 is reproduced hereinbelow :-

"Heard counsel for the petitioner.

It appears from perusal of the record that against the order dated 04.06.2018 passed by the Sub-Divisional Magistrate, Tamkuhi Raj, District- Kushinagar an appeal was preferred by the petitioner before the Additional Commissioner (Judicial) Gorakhpur Region, Gorakhpur/respondent no. 3. The said appeal was duly admitted by the respondent no. 3 vide order dated 28.06.2018 but the stay application filed by the petitioner was rejected. Against the aforesaid order, a revision was preferred by the petitioner before the Board of Revenue, U.P. Lucknow/respondent no. 2, the same was also rejected by the Board of Revenue vide judgment and order dated 02.12.2019 on the ground that revision is not maintainable against the interlocutory order.

It is argued by the counsel for the petitioner that once the appeal preferred by the petitioner was admitted, petitioner is entitled for the grant of interim order also in his favour.

Heard counsel for the petitioner. Learned Standing Counsel accepted notice on behalf of respondent nos. 1 to 4 and Sri Krishna Kant Singh, learned counsel appearing on behalf of respondent no. 6.

In the facts and circumstances of the case, in view of the order proposed to be passed today, notice need not be issued to the respondent no. 5.

With the consent of counsel for the parties, the present writ petition is disposed of finally at this stage in terms of the Rules of the Court.

The Supreme Court in the case of Mool Chand Yadav and another v. Raza Buland Sugar Company Limited, Rampur and others, (1982) 3 SCC 484, has held that if serious consequences ensue, in that event the stay application should be considered by the appellate court. The relevant part of the judgement is extracted herein-below:

"4. .......Now, if the order is not suspended in order to avoid any action in contempt pending the appeal, Mool Chand Yadav would have to vacate the room and hand over the possession to the respondents in obedience to the Court's order. We are in full agreement with Mr. Manoj Swarup, learned Advocate for respondents, that the Court's order cannot be flouted and even a covert disrespect to Court's order cannot be tolerated. But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal. Mr. Manoj Swarup may be wholly right in submitting that there is intentional flouting of the Court's order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted."

It appears from perusal of the facts of the case that though appeal was admitted by the respondent no. 2 but without giving any cogent reasons the stay application was rejected.

In the facts and circumstances of the case, the present writ petition is disposed of finally permitting to the petitioner to submit a fresh stay application before respondent no. 3 along with certified copy of this order within a period of two weeks from today. If such stay application is preferred, the respondent no. 3 will pass appropriate orders on the same taken into consideration the law laid down by the Supreme Court in the Case of Mool Chand Yadav and another v. Raza Buland Sugar Company Limited, Rampur and others, (supra), expeditiously and preferably within a period of three months thereafter.

For the period of four months status quo as on date shall be maintained between the parties on the spot.

Observations made by the revisional court will not be read by the Additional Commissioner while passing the order on the fresh stay application filed by the present petitioner and he will pass orders on the application submitted by the petitioner in accordance with law."

After the aforesaid order, case was duly filed by the petitioner before the appellate court along-with an application dated 25.2.2020 with the prayer to grant interim injunction in the form of status quo to be maintained between the parties during the pendency of the appeal.

In paragraph 25 of the writ petition it is stated that the private respondent no.5 in flagrant violation of the order passed by this Court dated 13.2.2020 had executed several sale deeds of small plots of the property in question to several buyers w.e.f. 28.2.2020. It is further stated in paragraph 26 that the respondent no.5 did not desist from executing sale deeds out of the property in question and had flagrantly and blantantly executed sale deeds of small plots, thereby trying to alienate the suit property to frustrate the cause of the petitioner. It is further stated that the private respondent no.5 in collusion and connivance with Vindra City Ventures Pvt. Ltd. had also started raising constructions on the plots demarcated out of property in question in violation of the order passed by this court on 13.2.2020. The respondent no.3 namely Additional Commissioner, Gorakhpur Region, Gorakhpur, passed an order dated 25.2.2020 in Appeal No.01098 of 1998 rejecting the application for grant of interim injunction. It has been held by the respondent no.3 while passing the aforesaid order that the property in question has already been divided in two minjumla number as such the suit filed by the petitioner under Section 116 of the U.P. Land Revenue Code, 2006 is not maintainable.

It is argued that the order passed by the respondent no.3 rejecting the said application on the ground that the suit is maintainable under Section 30 (2) of the U.P. Land Revenue Code, 2006 is absolutely illegal. It is further argued that since the property has not been divided by metes and bounds, all the co-owners of the property shall be entitled to the property as "Tenants in Common" meaning thereby, none of the owners can claim a specific area of the property and they have ownership rights in the entire property, i.e., every inch of the property is no-owned by the co-owners unless and until the property is partitioned by metes and bounds. It is further argued that the appellate court has ignored the well established principle of law and has practically allowed the respondent no.5 to usurp the property of the petitioner instead of preserving the same.

Heard learned counsel for the parties and perused the record.

From perusal of the facts as narrated above, it is clear that earlier point of litigation a writ petition was preferred by the present petitioner being Writ Petition (B) No.4120 (supra) in which directions were given to the appellate court to decide the said application most expeditiously and preferably within a period of three months. For a period of four months status quo as on date shall be maintained between the parties on the spot. Pursuant to the directions given by this Court, the order dated 13.3.2020 has been passed by the respondent no.3 rejecting the application submitted by the petitioner in the appeal for the grant of interim protection. It further appears that the appeal was filed in the year 2018 and parties have already put up their appearance in the matter. The appeal is pending consideration for a considerable time.

It further appears from perusal of the record as indicated in the judgment and order dated 13.2.2020 that the appeal filed by the present petitioner has already been admitted by the appellate court vide its order dated 28.06.2018. Once the appeal has been admitted it is settled law that injunction should also be granted.

In this view of the matter, learned counsel for the petitioner again relied upon the judgment of the Supreme Court in the case of Mool Chand Yadav and another v. Raza Buland Sugar Company Limited, Rampur and others reported in (1982) 3 SCC 484. In the aforesaid case it has already been held by the Apex Court that once the appeal was admitted, the petitioner is entitled for the grant of interim relief also in his favour.

In view of the above and also in the facts and circumstances of the case and without entering into merits of the case, present writ petition is disposed of finally with a direction to the respondent no.3 to consider and decide the entire appeal on its merit in accordance with law most expeditiously and preferably within a period of three months from the date of production of self attested computer generated copy of this order downloaded from the official website of High Court Allahabad.

For a period of four weeks from today or till decision on the aforesaid appeal whichever is earlier status quo as on today shall be maintained between the parties.

Order Date :- 25.2.2021

Pramod Tripathi