Allahabad High Court
Subhash Pal And 15 Others vs State Of U.P. And 25 Others on 24 August, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:170664
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 7530 of 2023
Petitioner :- Subhash Pal And 15 Others
Respondent :- State Of U.P. And 25 Others
Counsel for Petitioner :- Brijesh Chandra Naik
Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi
Hon'ble Jayant Banerji,J.
1. Heard learned counsel for the petitioners, Shri Bhupendra Kumar Tripathi, learned counsel appearing for the respondent no.2 and the learned Standing Counsel for the respondent no.1.
2. This petition has been filed seeking the following relief:-
"It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to set aside the impugned order dated 28.2.1997 passed by IVth Additional Civil Judge (Senior Division) Varanasi in Application under Order XXXIX Rule 1 and 2 C.P.C. (Paper No.6 C) in original suit no.471/92 so far as it relates to the plot no.6 only situated in Village-Adampur, Pargana-Shivpur, Tahsil and District - Varanasi, as well as the judgement and order dated 11.4.2023 passed by the Additional District Judge Court No.13, Varanasi in Civil Appeal No.52 of 1997 and Civil Appeal No.62 filed under Order XLIII Rule 1 C.P.C. and restrain the defendants/respondents not to interfere in peaceful possession of the plaintiffs over plot no.6 (0-12 Dismil) situated in Village-Adampur, Pargana-Shivpur, Tahsil and District- Varanasi and maintain status quo during pendency of Original Suit No.471/92 or pass such other and further orders, which this Hon'ble Court deems fit and proper in the circumstances of the case."
3. It appears that a suit for permanent injunction was filed against the defendant-first set and second set with regard to two plots of land namely, Plot No.5 area 0.10 decimal, which was shown in the plaint map as ?, ?, ?. The other area in dispute was marked in the plaint map as ?-1, ?-1, ? and ? on Plot No.6 area 0.12 decimal. The petitioners claim that the area of land on Plot No.6 is their 'sahan' (courtyard). Admittedly, the suit property is abadi land. On record before the trial court were, inter alia, a report of a Special Commissioner dated 05.01.1993, a report of the Lekhpal dated 17.08.1996, and also a Khatauni for the fasli year 1359.
4. By the impugned order of the trial court dated 28.02.1997, the application paper no.6-C filed by the plaintiff-petitioners seeking temporary injunction was dismissed as far as Plot No.6 is concerned, but was allowed for the suit property pertaining to Plot No.5. The petitioners challenged the order in an appeal being Civil Appeal No.52 of 1997. It appears that alongwith the appeal of the petitioners, the State of U.P. and the Gram Sabha also filed an appeal being Misc. Civil Appeal No.62 of 1997. Both the appeals were consolidated and decided by means of a common judgment and order dated 11.04.2023 by means of which the order of the trial court dated 28.02.1997 was affirmed.
5. The contention of the learned counsel for the petitioners is that the dispute before this Court is only with regard to Plot 6. It is contended that the claim of the plaintiff-petitioners is only with regard to a part of Plot No.6 which is a 'sahan' of the petitioners. It is contended that the defendants-private parties are encroaching upon the 'sahan' of the petitioners which is causing irreparable injury to the petitioners.
6. A perusal of the order of the trial court dated 28.02.1997 reflects that the court has referred to the report of the Commissioner and has observed that it is not reflected that on which part of Plot No.6 are the plaintiff-petitioners in possession and the map filed alongwith the Commissioner's report does not contain any measurements. Accordingly, the relief with regard to Plot No.6 was refused. The appellate court, in its judgment dated 11.04.2023, has observed that as far as Plot No.6 is concerned, the names of private defendants are recorded thereon and there was no documentary evidence filed to show that petitioners had title or possession of Plot No.6. Paper No.81-Ga was an order of the Pargana Magistrate dated 09.11.1992 reflecting a Masjid on Plot No.6. Accordingly, it was observed that no temporary injunction can be granted to the plaintiff-petitioners and the petitioners' appeal with regard to Plot No.6 was rejected.
7. Given the aforesaid observations of the court and the fact that the measurements of the suit property with regard to the Plot No.6 were not mentioned in the report of the Court Commissioner and even the report of the Lekhpal does not contain any exact measurements, the orders of the court refusing to grant injunction as far as Plot No.6 is concerned cannot be faulted. The area of Plot No.6 stated to be in the possession of the plaintiff-petitioners is, prima facie, not defined. It would be a matter to be considered after evidence in the trial.
8. Under the circumstances, no interference is called for in the orders and the petition is, accordingly, dismissed.
Order Date :- 24.8.2023
SK
(Jayant Banerji, J.)
