WPMS/1754/2021
2021 Latest Caselaw 3442 UK

IN THE HIGH COURT OF UTTARAKHAND
           AT NAINITAL
       ON THE 3RD DAY OF SEPTEMBER, 2021
                          BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
     WRIT PETITION (M/S) No. 1754 of 2021

BETWEEN:

Yusuf & others                             ... Petitioners
       (By Mr. Nikhil Singhal, Advocate)

AND:

Islam                                      ... Respondent

       (By Mr. Rajveer Singh, Advocate)


                        JUDGMENT

1. Respondent filed a declaratory suit in the court of Civil Judge (S.D.), Roorkee, District Haridwar with the contention that he has perfected his title over the suit property by adverse possession. Petitioners are defendants in the said suit and in their written statement; they have disputed possession of respondent/plaintiff over the suit property.

2. Learned trial court rejected respondent's temporary injunction application vide order dated 22.04.2021 by holding that he could not establish prima facie case in his favour and further that he could not produce any evidence regarding his possession over the suit property.

3. Plaintiff/respondent filed an appeal under Order 43 Rule 1(r) of C.P.C., which was allowed by learned 1st Additional District Judge, Roorkee, District Haridwar vide judgment dated 09.08.2021 and

defendants to the suit were restrained from interfering with the possession of the plaintiff over the suit property. Feeling aggrieved by the judgment rendered by learned Appellate Court, defendants have approached this Court.

4. Mr. Nikhil Singhal, learned counsel appearing for the petitioners submits that the suit property consists of open land and a structure existing in a corner of the land and it was the specific case of the petitioners that the plaintiff was merely a licensee in respect of the structure and he had no concern with the open land. However, learned Appellate Court has restrained the defendants to the suit, whose title is not in dispute, from interfering in the possession of the plaintiff.

5. Mr. Rajveer Singh, learned counsel appearing for the respondent submits that the case set-up by the petitioners was that possession of respondent is permissive and it was not their case that plaintiff is their licensee. He, however, submits that he has no objection if the judgment passed by learned Appellate Court is modified by directing the parties to the suit to maintain status quo qua nature, possession and revenue entry of the suit property.

6. Accordingly, the impugned judgment dated 09.08.2021, passed by 1st Additional District Judge, Roorkee, District Haridwar is modified and the parties are directed to maintain status quo qua nature, possession and revenue entry of suit property. It is made clear that learned trial court will decide the suit independently, without being influenced by any observation made by learned 1st Additional District Judge, Roorkee or by this Court.

7. Accordingly, the writ petition is disposed of.

(MANOJ KUMAR TIWARI, J.) Aswal