Uttarakhand High Court
Kamal Nayan vs Mangal Singh And Others. The Suit on 10 March, 2021
WPMS No. 565 of 2021
Hon'ble Sharad Kumar Sharma, J.
Mr. Lokendra Dobhal, Advocate for the
petitioners.
The petitioners before this Court are the
defendants in a Civil Suit, being Suit No. 28 of 2012,
Kamal Nayan Vs. Mangal Singh and others. The Suit
thus instituted by the plaintiff/respondent, the
property in dispute, the chauhadi of which was
described, therein was lying in khasra No. 597 Kha,
having an area of 0.0200 hectares, situated in Mauza
Kyara, Pargana Parwadoon, Tehsil Sadar, District
Dehradun.
The Suit thus instituted by the plaintiff on 18th
January, 2012, accompanied with it, an application
under Order 39 Rule 1 and 2 of CPC, praying for the
grant of temporary injunction and the temporary
injunction too described the property in dispute as to
be khasra No. 597 Kha.
Its on this application, when the matter was
taken up by the Civil Judge (Junior Division),
Dehradun, after filing of an objection by the
defendants/petitioners, herein, under Order 39 Rule 4
CPC, while dealing with the aspect of prima facie
case, the Court has taken into consideration and had
rendered that the plaintiffs are shown to be recorded
in the revenue records under the strength of the
khatuni, paper No. 10C2, and after the death of the
predecessor/owners, Kamal Nayan and Saraswati
Devi, the plaintiffs have been recorded in the revenue
records. As well as, the aforesaid fact of title was
also established by the placement of Udaran Khatuni,
filed before Court below, i.e. paper No. 87 C2 and
khasra No. 597 Kha.
On the contrary, the case of the
defendants/petitioners before the Court below on
merits was on the basis of the stand taken by them in
the written statement, particularly that, as referred in
para 11, they have admittedly claimed their ownership
to be with regard to the land lying in khata No. 93,
having an area of 3.0300 hectares of Mauza Kyara,
District Dehradun.
Said khasra number is not the subject matter of
dispute in the Suit, and in the set of pleadings which
has been raised by the plaintiff, in the Suit, that the
defendants are alleged to have wrongfully occupied
the property, may be that there are independent
proceedings, which are to be resorted to by the
plaintiff for eviction of the respondents, if at all it is
required under law, but as far as grant of injunction
by the Court of Civil Judge (Junior Division),
Dehradun, by the order of 22nd April, 2019, is
concerned, that would be exclusively treated to be
confined to the injunction in relation to the property,
which was exclusively the subject matter of the Suit,
as well as the application under Order 39 Rule 1/2 of
the CPC itself, i.e. khasra No. 597-Kha, and it cannot
borrowed for the purposes of petitioners' khasra No.
93, and hence, the finding recorded therein pertaining
to the prima facie case of the plaintiff/respondents,
was subsequently also affirmed in the Misc. Civil
Appeal No. 33 of 2019, Surat Singh and another Vs.
Sohan Lal and another, where too, almost an identical
findings have been recorded, on an aspect of prima
facie case, lying in favour of the plaintiffs.
Since the finding of prima face case is based on
a rightful appreciation of the revenue documents,
which remained unrefuted and denied, the entries
made therein would be deemed to be correct until and
unless, it is put to challenge in view of the
presumption contemplated under Section 57 of the
Land Revenue Act of 1901.
Since the injunction has been concurrently
affirmed by both the Courts below based on a rightful
determination of a prima facie case, and as the grant
of injunction would be confined to the property in
dispute, i.e. khasra No. 597 Kha, I am of the view that
the impugned orders passed by the Courts below, do
not suffer from any apparent error as such, and the
interpretation which has been given to it by the
petitioners on the ground of an allegation of
encroachment made by the plaintiff or for the
recourse to resort to the proceedings under Section
209 of the Zamindari Abolition Act, will not at all
cloud the order of injunction which has been granted
by the both the Courts below.
Consequently, the Writ Petition lacks merit and
the same is accordingly dismissed.
Subsequent to the conclusion of the judgment,
the learned counsel for the defendants/petitioners, had
sought a prayer that an appropriate direction may be
issued to the Court of Civil Judge (Junior Division),
Dehradun, who is ceased with the proceedings of Suit
No. 28 of 2012, Kamal Nayan and others Vs. Mangal
Singh and others to be expedited.
Looking to the innocuous prayer made and
considering the fact, that it is the Suit of 2012, the
Court of Civil Judge (Junior Division), Dehradun, is
requested to decide the aforesaid Suit as expeditiously
as possible, but not later than the period of nine
months from the date of production of certified copy
of this order.
(Sharad Kumar Sharma, J.)
Dated 10.03.2021
Shiv
