Balveer And 10 Others vs State Of U.P. And 2 Others
2023 Latest Caselaw 17567 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:141093
 
Court No. - 1
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 3076 of 2023
 

 
Petitioner :- Balveer And 10 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Shrey Sharma,Shikhar Tripathi
 
Counsel for Respondent :- C.S.C.,Devendra Kumar
 

 
Hon'ble Jayant Banerji,J.

1. Heard Shri Anil Sharma, learned Senior Advocate assisted by Shri Shikhar Tripathi, learned counsel for the petitioners and Shri Rishi Kant Rai, learned Standing Counsel appearing for the respondent nos. 1 and 3. Shri Devendra Kumar, learned counsel has accepted notice on behalf of the respondent no. 2.

2. This petition has been filed seeking the following relief:

"(i) To allow the present petition and set-aside the order dated 18.01.2023 passed by the Additional District Judge, Court No. 6, Moradabad in Civil Appeal No. 14 of 2022 and the order dated 22.03.2022 passed by the Civil Judge, (Senior Division) Moradabad on an application under Order 39 Rule 1 and 2 in Civil Suit No. 75 of 2022.

(ii) Pass such other and further order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

3. The contention of the learned counsel for the petitioners is that the petitioners were forcibly dispossessed from the property in dispute on 14.9.2021 pursuant to an alleged order of resumption dated 10.9.2021. It is contended that the petitioners filed Civil Suit No. 75 of 2022 seeking a relief of permanent injunction that the respondents be restrained from hindering the plaintiff-petitioners in carrying on their business over the scheduled suit property. It is contended that earlier, by order dated 22.3.2022, the trial court dismissed the injunction application of the petitioners. The plaintiff-petitioners then filed a Misc. Civil Appeal No. 14 of 2022 challenging the order of rejection of the injunction application by the trial court. By the order dated 1.10.2022, the appellate court dismissed the appeal of the petitioners. It is stated that thereafter the plaintiff-petitioners approached this Court by filing a petition being Matters Under Article 227 No. 10031 of 2022 (Balveer and 10 others Vs. State of U.P. and 2 others) which petition came to be disposed of on 5.12.2022 by setting aside the order of the appellate court dated 1.10.2022 and remanding the matter back to the appellate court to decide the Misc. Civil Appeal No. 14 of 2022, afresh. It is stated that by the impugned order dated 18.1.2023, the appellate court has again dismissed the appeal with cost.

4. The contention of the learned counsel for the petitioner is that a bare perusal of the report of the Amin Commissioner reflects that the petitioners were in possession over a small part of the property in dispute. It is contended that the property in dispute is a huge plot of land and the petitioners are petty traders engaged in business of agricultural products and they were forcibly dispossessed and therefore, temporary injunction ought to have been granted by the trial appellate court. Shri Anil Sharma, learned Senior Advocate has further stated that proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act were initiated against the predecessors of the plaintiff-petitioners by the Gram Sabha, in which, by an order dated 20.4.1991, the notice was withdrawn on the ground that the opposite parties therein (predecessors of the petitioners) were found to be in possession for a very long time. It is contended that in view of the finality of the order of the Tehsildar dated 20.4.1991, it was established that the plaintiff-petitioners were in possession. It is stated that rent was being paid to the Municipal authorities by the plaintiff-petitioners.

5. Learned Standing Counsel has strongly opposed the petition and has contended that firstly, since the petitioners claimed to have been forcibly dispossessed, it was for them to have filed a suit under Section 6 of the Specific Relief Act, 1963 and, secondly, that no amendment of the plaint was sought by the plaintiff-petitioners seeking a relief of possession. It is contended that since in the plaint the relief of possession was not sought, therefore, by seeking temporary injunction from the courts for restraining dispossession from the property in dispute, the plaintiff-petitioners have actually sought a relief that does not exists in the plaint.

6. I have heard the counsel for the parties. A perusal of the order of this Court in the previous petition of 2022 reveals that the order of the trial court dated 22.3.2022 was not set aside and the matter was remanded. By the order of 22.3.2022, the application of the plaintiff-petitioners Paper No. 6C seeking temporary injunction against dispossession was rejected. The appellate court in the order impugned dated 18.1.2023 has observed that the report of the Amin cannot be taken as proof of possession. It was noted that the Amin report merely showed the position at the site. It was noted that the appellants had admitted that on the northern part of the property in dispute, the defendants had possession. The appellants had pressed the fact that they were in possession of the southern part of the property in dispute. It was noted that the area over which the possession of the defendants was admitted by the plaintiff-petitioners was not specified nor were the measurements stated. It was further noted that the area allegedly in the possession of the plaintiff-petitioners also was not specified. The appellate court, therefore, observed that the property over which the possession of the plaintiffs has been stated to exist has not been defined and specified. It was noted that the defendant-respondents had stated they they had evicted the plaintiff-petitioners from the property in dispute and the property was handed over to the defendant no. 3 for construction of a laboratory and that the plaintiffs were not in possession over any part of the property in dispute. It was noted the property in dispute was resumed by an order of the District Magistrate dated 10.9.2021. Accordingly, it was held that no prima facie case for grant of temporary injunction was established. It is pertinent to note that the application Paper No. 6C has not been filed by the petitioners. Be that as it may, the plaint has been enclosed as Annexure No. 1 in which the property in dispute has been stated to be in Schedule Ka of the plaint and the description whereof is as under:

"परिशिष्ट-क

एक किता सम्पत्ति स्थित ग्राम देहरी मुस्तहकम जो शामिल आबादी होकर मोहल्ला कटघर गुलाब बाड़ी के नाम रोजाना जाता है जिसके उत्तरी भाग में बगिया, अमरुद व दक्षिण भाग में शेष दिवार हदबंदी व व्यवसाय आढत व टाल लकड़ी वादीगण स्थित है, शहर व जिला मुरादाबाद की चुर्तसीमांए-

पूरब- शमशान घाट जिसके एक भाग में वर्तमान समय में धर्मशाला शमशान घाट है व नाला

पश्चिम- सड़क बादहू कब्रिस्तान

दक्षिण- जुज में मंदिर बादहू सड़क जो पश्चिम से पूर्वब को शमशान घाट पर जाती है।

उत्तर- नाला गुलाब बाड़ी बादहू हाई पावर टेशन वाला बिजली का खम्भा जो पूर्व में बशक्ल टाल बास मोहम्मद अली वाली व आराजी उफतादा थी।"

7. It is noted that neither the area in respect of which injunction is sought, has been mentioned nor has the plot number been specified. Though, the learned counsel for the plaintiff-petitioners has referred to the written statement filed on behalf of the defendant-respondents no. 1 and 3 to contend that the property in dispute bears plot no. 259A, it cannot take away the fact that the plot number has not been mentioned in the plaint and neither has any amendment been moved in this regard. As a matter of fact, the boundaries of the plaint, when juxtaposed with the map filed by the Amin Commissioner alongwith his report, indicate that they are apparently the boundaries of a massive plot. Further, as correctly pointed out by the learned Standing Counsel, no relief of possession has been claimed in the suit filed by the plaintiff-petitioners. It is the case of the petitioners that on 14.9.2021 eviction proceedings were taken. The report of the Amin cannot be taken as evidence at the current stage inasmuch as that requires to be duly proved and furthermore, that report would have only persuasive value and would not be conclusive. Though, before the appellant court, the judgment of Rame Gowda Vs. M. Varadappa Naidu1 was cited by the plaintiff-petitioners, the learned counsel for the plaintiff-petitioners does not dispute that on 14.9.2021 the parties were evicted. Therefore, the ratio of the judgment of the Rame Gowda (supra) may not come to the rescue of the plaintiff-petitioners at this stage. A finding has been recorded by the appellate court that, prima facie, the possession of the plaintiff-petitioners has not been established.

8. In the facts and circumstances of the case, no interference is required in this petition. This petition is, accordingly, dismissed.

9. It is clarified that the observation made herein are only for purpose of adjudication of this case and shall not be taken as an opinion on merits of the case of either of the parties.

Order Date :- 17.7.2023

A. V. Singh

(Jayant Banerji, J.)