Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 6713 of 2018 Petitioner :- Dinesh Kumar And Another Respondent :- Anmol And 5 Others Counsel for Petitioner :- Bhuvnesh Kumar Singh Counsel for Respondent :- Mohd. Aslam Khan
Hon'ble Mahesh Chandra Tripathi,J.
Heard Sri Bhuvnesh Kumar Singh, learned counsel for the plaintiffs-petitioners and Sri M.A.Khan, learned counsel for the defendants-respondents.
Plaintiffs-petitioners are before this Court assailing the validity of the order impugned dated 21.8.2018 passed by Additional District Judge/F.T.C.-1, Bijnor in Misc. Appeal No. 35 of 2016.
Record in question reflects that the petitioners had instituted Original Suit No. 72 of 2014 against respondent no. 1 to 4 for permanent injunction. It appears that the temporary injunction application filed by the petitioner has been considered and the trial court has proceeded on the basis of Amin Commission Report to accord an interim injunction in favour of the plaintiffs- petitioners vide its order dated 9.9.2014 and also directed to maintain status quo on spot. The said order has been assailed by the defendants- respondents in misc. appeal being Misc. Appeal No.
35 of 2016 before the District Judge, Bijnor. The appellate court has proceeded to allow the appeal in question and the interim injunction, which was accorded by the trial court, was accordingly vacated by the order impugned. Aggrieved by the said order, the petitioners are before this Court assailing the validity of the same.
Learned counsel for the petitioners precisely submits that the trial court has proceeded to accord interim injunction after taking into consideration the Amin Commission Report. He further submits that at no point of time, any division of the land in question has taken place but at the same time it has also sought to be contended that the parties are existing on their holdings and as such the interim injunction to the effect that the parties shall maintain status quo on spot, was right order but in most arbitrary manner, the same has been upset by the appellate court and as such, this Court should come for rescue and reprieve of the petitioners.
On the other hand, Sri M.A.Khan vehemently opposed the writ petition and submits that the appellate order is fully justified under the present facts and circumstances. In support of his submission, he has placed reliance upon judgments of this Court in Virendra Kumar Vs. Additional District Judge Ct. No. 1 and Others 2013 LawSuit(All) 957 and Bauram Alias Dukhan and Ors. Vs. Munni and Ors. 2007 LawSuit(All) 1605. In the said circumstances, it has also been sought to be contended, once the appellate court found that the plaintiffs were not in exclusive possession of the land in question and the holding was undivided, the injunction could not be accorded by the trial court and admittedly, the proceeding under Section 176 of U.P.Z.A. & L.R. Act is pending consideration, which has been deliberately avoided by the petitioners. It has also been urged as per dictum of Hon'ble Apex Court in Kochunju Nair Vs. Koshy Alexander, 1999 AIR(SC) 2272, without a suit for partition, injunction cannot be granted against a co-owner and as such no interference is required.
In this backdrop, the Court has proceeded to examine the record in question and perused the order impugned. While allowing the misc. appeal in question, the appellate court has clearly recorded the finding of fact that the holding is undivided and the interim injuction has been sought with regard to the entire holding which is agricultural land and as such the trial court has proceeded against the law while directing the parties to maintain status quo on spot and the same was set aside.
In the facts and circumstances, once the categorical finding has been recorded by the lower appellate court and in view of the law laid down by this Court in Bauram Alias Dukhan(supra), the Court does not find illegality or infirmity in the order impugned.
The writ petition sans merit and is accordingly dismissed.
Order Date :- 11.9.2018 A.K.Srivastava