Anand Devi vs Vishwanath & Ors
2021 Latest Caselaw 8588 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 
Case :- MISC. SINGLE No. - 3323 of 2018
 
Petitioner :- Anand Devi
 
Respondent :- Vishwanath & Ors
 
Counsel for Petitioner :- Preeti Shukla (Tiwari),Anurag Shukla
 
Counsel for Respondent :- Saima Khan,Nripendra Mishra
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

This petition has been filed by the petitioner challenging the order dated 18.01.2018 passed by the learned District Judge, Balrampur by means of which Miscellaneous Appeal no.13/2017 has been dismissed. This appeal was filed against the order dated 11.10.2017 passed by the learned Civil Judge (Junior Division), Balrampur in Original Suit No.61/2015 by means of which the application of the petitioner for temporary injunction, who was the plaintiff, has been rejected.

It is the case of the petitioner that being the absolute owner of the property mentioned in the suit and also in possession thereof when the defendants tried to interfere in the peaceful enjoyment of the said property, the plaintiff filed original suit for Permanent Injunction along with an application for temporary injunction and an ad-interim injunction was also granted on 03.02.2015 ex-parte on the basis of statements made in the plaint. The defendants of the suit appeared and filed their written statement. They also filed an objection against the application for Temporary Injunction. Respondents no.1 and 2 sold the property in favour of respondents no.3 and 4 in disregard of the ad-interim injunction order dated 03.02.2015. Therefore, the petitioner moved a transfer application under Section 24 of the CPC for transfer of the said case. On the said move of the petitioner the learned trial court got annoyed and did not extend the order of maintenance of status-quo on the next date, i.e., on 11.01.2017 though the application for Temporary Injunction under Order 39, Rule 1 and 2 remained pending.

The petitioner filed a revision before the District Judge, Balrampur who allowed the revision by his order dated 29.3.2017. The matter being remanded it further annoyed the Civil Judge (Junior Division), Balrampur and the Temporary Injunction application was rejected on 11.10.2017. The petitioner filed Miscellaneous Civil Appeal no.13/17. When the Appeal was not being entertained the petitioner approached this Court by filing a petition under Article 227 of the Constitution. This Court disposed of the petition with the direction that the application filed by the petitioner for stay of the order of the learned Court below along with the Miscellaneous Civil Appeal may be decided within a month from the date of passing of the Court order dated 23.11.2017. The order further provided that for a period of one month or till the disposal of the application for interim injunction, whichever is earlier, the status-quo as existing on the date shall be maintained by both the parties. By the time this Court disposed of this petition, the Appellate Court had fallen vacant and the defendant tried to raise construction over the property in dispute, therefore, this writ petition was filed.

Learned counsel for the petitioner has argued on the merits of the case that was set-up by the plaintiff before the learned trial court and alleged misrepresentation on the part of the defendants. He also tried to convince this Court that the defendants had got the property in question from one Daya Ram who was recorded in the revenue records as unauthorized occupier whereas the petitioner had bought the property from its recorded tenure-holder. He also tried to point out that in the written statement filed by the defendants in the said suit, the defendants had created confusion regarding the property in dispute having been situated either in plot no.288 or plot no.299.

Learned counsel for the petitioner has placed reliance upon the judgment referred by the Hon'ble Supreme Court in the case of Sripat vs. Rajendra Prasad decided on 02.3.2020 where Hon'ble Supreme Court observed that if there was dispute/doubts regarding identity of the property in question, the best course open to the authorities was to appoint a survey commission to clearly identify the property in suit and then proceed.

Learned counsel for the petitioner has also argued that the sale-deed of the defendants was executed on 05.4.1986, during consolidation operations without obtaining permission from the Settlement Officer (Consolidation) under Section 5(C) of the U.P. Consolidation of Holdings Act. Section- 5(C) was no doubt repealed in 1991 but at the time when the said section was in operation, any sale deed which was entered into without prior permission would become void.

It has been argued by the learned counsel for the petitioner that the learned trial court as well as the appellate court failed to appreciate that in a suit for permanent injunction, the possession of title to the property in suit is of no consequence. What matters is whether the parties seeking the injunction is in possession of the property in question. The learned trial court failed to appreciate that the defendants were claiming possession over the property in question on the basis of a sale-deed which was void as it was executed in violation of Section 5(C) of the U.P. Consolidation of Holdings Act. It has been submitted that by the orders impugned, the appellate court has set-up a new case that the plaintiff has resorted to concealment and misrepresentations which was not the case before the trial court at the time of rejection of application for temporary injunction.

Learned counsel appearing for the respondent no.1, 3 and 4 Ms. Saima Khan on the other hand has pointed out from the orders impugned that the learned trial court duly considered the application for Temporary Injunction on the basis of records/ documents before it. There is no arbitrary exercise of jurisdiction nor there was an exercise beyond jurisdiction. The law as applicable to disposal of application for temporary injunction has correctly appreciated and applied by the learned trial court. Therefore, this Court should not interfere under Article 227 of the Constitution, which jurisdiction is a very limited jurisdiction as it is supervisory in nature and not an appellate jurisdiction.

This Court has considered the order passed by the learned trial court dated 11.10.2017. The learned trial court decided the matter on the basis of three settled principle for grant of temporary injunction, i.e., prima-facie case, balance of convenience and the likelihood of irreparable loss. The trial court considered the prima-facie case set-up by the plaintiff and came to conclusion that plaintiff could not establish her title to the property in suit nor could she establish her possession over it. The question of likelihood of irreparable loss was also thereafter decided against the plaintiff.

In the Miscellaneous Civil Appeal filed by the plaintiff ? petitioner the learned appellate court after appreciating the facts as mentioned in the learned trial court's order, considered afresh the evidence that was placed by both the parties before it. The documentary evidence was considered in detail and it was found that the plaintiff could not establish her possession over the property in dispute at the time of consideration of the application for Temporary Injunction. The case set up by the plaintiff was that her ancestors were in possession over the property in dispute and she is in possession before the issuance of Zamindari Abolition notification, and therefore she had a right over the property in dispute under Section ? 9 of U.P.Z.A.L.R. Act. The Appellate Court noticed that several amendments were made in the plaint by the plaintiff after the written statement was filed by the defendants, which made it clear that the plaintiff was not sure of the identity of her property and whether it fell in plot no.288 or 289. The appellate court also considered the map of the property filed by the plaintiff which shows that plaintiff had purchased the property from one Hidayat Ali and found that the property in dispute perhaps did not fall in plot no.288 but relates to plot no.289, the part of which was purchased by the defendant from one Daya Ram.

In Syed Yaqoob vs. K.S. Radhakrishnan AIR 196 4 SC 477, the Constitution Bench observed that "a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity, to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to the principles of natural justice. There is however, no doubt that the jurisdiction to issue a writ of Certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrcted by a writ but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted in admissible evidence which ha influenced the impugned findings."

Having gone through the observations made by the trial court and the appellate court, this Court finds that there was no exceeding of jurisdiction while considering the application for temporary injunction by the trial court which would entitle to exercise its jurisdiction under Article 227 of the Constitution to disturb the conclusion reached by the trial curt and the appellate court.

Even otherwise this Court finds that the suit in question was filed in 2015 and is more than six years old, therefore, this petition is disposed of with the direction to the learned trial court to keep in mind the direction issued on the administrative side by the High Court and to try and dispose of the matter as expeditiously as possible as it is more than five years old. This Court is aware that the issues have not been framed till date, therefore, this Court is not setting up any time limit for deciding the suit at this stage. However, it shall be open for the parties to approach this Court in case, there is unnecessary delay in framing of issues by the learned trial court.

Order Date :- 26.7.2021

mks