Allahabad High Court
Bhanu Pratap Singh And 2 Others vs Kapil Dev Singh And 5 Others on 6 April, 2022
Bench: J.J. Munir
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 6
Case :- MATTERS UNDER ARTICLE 227 No. - 6561 of 2016
Petitioner :- Bhanu Pratap Singh And 2 Others
Respondent :- Kapil Dev Singh And 5 Others
Counsel for Petitioner :- Rajeev Kumar Singh,Sr. Advocate
Counsel for Respondent :- Salil Kumar Rai,Salil Kumar Rai,Shashi Prakash Misra
Hon'ble J.J. Munir,J.
Parties have exchanged affidavits.
Admit.
Heard forthwith.
Heard Mr. Rajeev Kumar Singh, learned Counsel for the plaintiff-petitioners and Mr. Shashi Prakash Misra, learned Counsel appearing on behalf of defendant-respondent no. 1.
This petition arises out of orders passed on the temporary injunction application in Original Suit No. 269 of 2003, Bhanu Pratap Singh v. Kapil Dev Singh. The suit was filed by Bhanu Pratap Singh, Shesh Pratap Singh and Smt. Lalli Singh against Kapil Dev Singh and four other defendants, seeking a permanent injunction to the effect that the defendants be restrained from dismantling the plaintiffs' way/passage located in Khasra No. 45/0-8-3, situate at Village Gagnai Rao, Tappa Mehdawal, Pargana Magahar Purab, Tehsil Mehdawal, District Sant Kabir Nagar or otherwise interfering with the plaintiffs' right of ingress and egress through the passage. An application for interim injunction, asking for the same relief, but in temporary form, was also made.
The Trial Court vide order dated 07.02.2007 allowed the application for temporary injunction, directing the defendants to maintain status quo regarding the passage shown in the plaint map by letters A, B, C, D located in Khasra No. 45 and further restrained both the parties not to interfere with each other's right of ingress and egress, utilizing the said way. The order last mentioned was passed by the learned Civil Judge (Junior Division), Khalilabad, Sant Kabir Nagar.
The order of temporary injunction was assailed by the defendants by carrying an appeal to the District Judge of Basti. The appeal was numbered on the file of the District Judge as Appeal No. 13 of 2007. The Additional District Judge, Fast Track Court-II, Sant Kabir Nagar, before whom the appeal came up on assignment after carvation of the new district, allowed the appeal and set aside the temporary injunction order dated 07.02.2007. The learned Judge has set aside the order of temporary injunction because he has found contradictory cases pleaded by the plaintiffs to establish their right of way over the passage that constitutes the suit property located in Plot No. 45. One right that was pleaded is based on easement by prescription, which was not held substantiated tentatively, because the passage of 20 years was not there. The alternate ground was that a lease had been granted by defendant no. 1 to use the passage on payment of premium of Rs. 10/-. This was also not found substantiated by the Appellate Court.
The third case on which the plaintiff rested his claim, as noticed by the Appellate Court, was that the way was one constructed by the Gaon Sabha and it was said to be shown in the khasra. All these different cases were found to be inherently contradictory and none of them were found prima facie established by the Appellate Court. It was in that view of the matter that the first ingredient of a prima facie being not established, the order of temporary injunction was set aside by the Appellate Court.
This Court has heard learned Counsel for parties and perused the record. It is, no doubt, true that as matters stand, there is no positive evidence forthcoming on record to establish for the plaintiffs a case either based on title or easementary right, entitling them to the use of the passage by right for ingress or egress.
On the other hand, learned Counsel for the defendants has stated that it is a private passage. This Court not wish to go into the worth of the defendants' case, but would certainly remark that for the limited purpose of temporary injunction matter, the petitioners have not been able to establish a prima facie case. Therefore, the other ingredients necessary for disposition of the temporary injunction matter need not be considered. These remarks by this Court, and for that matter, all remarks by the Appellate Court made in the order impugned are absolutely tentative and would have no bearing on the merits of the parties' case, that has to be tested at the trial. The parties are free to lead evidence in the manner that they may be advised and the Trial Court shall pass judgment in the suit after holding trial, uninfluenced by any remarks in this order or any of those passed by the Courts below in the temporary injunction matter. The suit shall be decided entirely on the basis of evidence led by parties and in accordance with law, after hearing parties and their witnesses.
In the interest of justice, it is ordered that the Trial Court shall proceed with the suit, which is one of the year 2003, in the manner that two dates of effective hearing shall be fixed every week. The Trial Court shall conclude the trial within a period of six months from the date of receipt of a copy of the judgment by the Trial Judge concerned. It is made clear that the case shall not be adjourned on account of any resolution of the local Bar, and all such resolutions shall be ignored. Learned Counsel appearing in the case shall assist the Court, ignoring any resolution of the local Bar.
Subject to the above directions, this petition stands disposed of.
Order Date :- 6.4.2022
I. Batabyal
