Allahabad High Court
Subhash And 3 Others vs Kanwar Singh And 9 Others on 13 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:85729
Court No. - 53
Case :- FIRST APPEAL FROM ORDER No. - 796 of 2024
Appellant :- Subhash And 3 Others
Respondent :- Kanwar Singh And 9 Others
Counsel for Appellant :- Namit Srivastava,Ram Raj Pandey
Hon'ble Kshitij Shailendra,J.
1. Heard Shri Namit Srivastava, learned counsel for the plaintiff-appellants and perused the record.
2. This appeal under Order 43, Rule 1(r) of the Civil Procedure Code, 1908 has been filed challenging the order dated 28.03.2024 whereby the Additional Civil Judge (S.D.) Baghpat has rejected the application seeking temporary injunction pending suit.
3. The case of the appellants is that they are enjoying possession over the disputed land for the period of more than 50 years. Entire plaint case is based upon the plea of adverse possession and it appears that injunction was claimed only on the basis of alleged possessory title and reliance was placed upon an electricity connection of 5 Horse Power, which was obtained by Late Surat Singh (father of appellant Nos.1, 2 and 3) on 06.11.1985. The defendant-respondents, in their objections filed against the application for temporary injunction, took plea that the property belongs to them. The details of the record of rights were specifically disclosed and the possession of the plaintiff-appellants was denied. Further plea was raised that the names of the plaintiffs were not recorded in any record.
4. The trial court, after discussing the contents of the injunction application and the objections filed by the defendants and referring to voluminous documentary evidence filed in the form of extracts of revenue records, framed three points, i.e. three ingredients necessary for grant/ refusal of temporary injunction, viz prima facie case, balance of convenience and irreparable loss.
5. While considering the first point, i.e. prima facie case, the trial court arrived at a conclusion that the plaint case was vague and that the date, on which, threats to dispossess the plaintiff-appellants were advanced and the boundaries of the property, over which the plaintiffs assert their possession, had not been disclosed in the plaint. The trial court also discussed the effect of electricity connection since 1985 and recorded a finding that the electricity connection is issued in favour of an occupant of the property and, placing reliance upon the judgment of this Court, in the case of Divya Sahani vs. State of U.P. and others, 2021 (5) ADJ 248, it has been observed that the electricity connection cannot be a proof of ownership. The trial court has held that the plaintiffs failed to establish their prima facie case and the remaining two ingredients have also been decided against them.
6. On perusal of record and after hearing counsel for the appellants, I find that the sole basis for claim of injunction is plea of adverse possession. Except the aforesaid electricity connection, no other document was filed by the plaintiff-appellants before the court below. Once, the appellants themselves have made a plea of adverse possession as basis of their claim, they admit the ownership of the defendants in unequivocal terms. The question of adverse possession being dependent upon various ingredients to be established during the course of trial i.e., open, hostile, continuous and uninterrupted possession against the true owner, such a plea, in absence of any cogent material, cannot be examined at the time of considering the injunction application, particularly, in a case like the present one where no documentary evidence, except the electricity connection, has been brought on record. The vagueness of the plaint assertions is apparent from perusal of the plaint itself and the Court does not find any error in the order impugned whereby the injunction application has been rejected.
7. Leaving all contentions on merits of the rival claims open to be raised during the course of trial, this Court does not find it to be a fit case to even invite response from the respondents or to grant any relief to the appellants.
8. The appeal is, accordingly, dismissed.
9. The trial court is directed to decide the suit expeditiously strictly in accordance with law.
Order Date :- 13.5.2024
Jyotsana
