Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 5550 of 2019 Petitioner :- Smt. Kamla And Another Respondent :- Khyali Ram And 2 Others Counsel for Petitioner :- Arvind Srivastava Iii
Hon'ble Manoj Kumar Gupta,J.
The instant petition has been filed challenging the order dated 15.4.2019 passed by the Appellate Court in Misc. Appeal No.18 of 2015. The Appellate Court has set aside the order of the trial court dated 21.9.2015 declining to grant temporary injunction to the plaintiff-respondents of Original Suit No.154 of 2015. The Appellate Court has allowed the injunction application and has directed the parties to maintain status quo in respect of the suit property, during pendency of the suit.
The suit in question was instituted by the plaintiff-respondents in representative capacity. It was alleged that they are residents of Village Khandia. Over Plot No.456, area 8.0878 hectare, there is village abadi. On the south-western corner of the said plot, there is public temple and a well behind it. The well is being used by the villagers in connection with religious ceremonies and for fetching water. Petitioner No.1 is Gram Pradhan and petitioner No.2 is elder brother of her husband. Their house is situated on the western side of the well. They had illegally encroached over the well and the adjoining land, although under Section 15 of the U.P. Panchayat Raj Act, it is their duty to preserve public property. The plaintiffs and other villagers made a complaint to the Police on 19.4.2015. However, the defendants, without caring for the same, have started digging foundation and are bent upon raising constructions. Accordingly, the relief claimed in the suit is for permanent prohibitory injunction restraining the defendant-respondents from taking illegal possession of the temple and the well or from raising any construction over it. The plaintiffs also prayed for grant of temporary injunction in their favour. In support of the said application, plaintiff No.1 filed his affidavit.
The trial court got the suit property inspected by Amin Commissioner. The report of the Amin Commissioner dated 30.4.2015 establishes existence of a well. The Commissioner found the well filled up with mud at the time of inspection and various constructions having been raised around the same.
The petitioners, despite being duly served and represented before the trial court through counsel, chose not to file any objection to the injunction application or the affidavit filed in support thereof.
The trial court, by order dated 21.9.2015 rejected the injunction application on the sole ground that in revenue map it is not mentioned that there exists temple and well over Gata No.456. It found that Gata No.456 which is a very big plot having an area 8.0878 hectare is recorded as village abadi.
Aggrieved by the order of the trial court rejecting application for temporary injunction, the plaintiff-respondents filed Misc. Appeal No.18 of 2015 (computer registration No.63 of 2015), which has been allowed by the Appellate Court taking into consideration the photographs which establishes that their exists a well over the suit property; the report of the Amin Commissioner 20-Ga in which also existence of well is clearly mentioned but was found filled with mud and constructions having been raised around it; the letter written by the villagers to Superintendent of Police, Rampur dated 17.4.2015 mentioning that the first petitioner, who is Village Pradhan, is bent upon encroaching the well. The Appellate Court noted that the defendants have not filed any objection against the injunction application. The allegation in the injunction application and the affidavit filed in support thereof had gone unrebutted. Accordingly, the Appellate Court held that there is prima facie case in favour of the plaintiffs and balance of convenience lies in preserving the suit property until the suit is decided and directed the parties to maintain status quo.
Counsel for the petitioners laid much emphasis on the fact that in village map the existence of well is not recorded.
The petitioners though claim that it was their private well, but they have not disclosed the source of their title, as they have chosen not to file any reply to the injunction application and the affidavit filed in support thereof, nor have filed written statement so far. The specific case of the plaintiffs that the temple and well behind it are situated over Plot No.456 and are being used by the villagers since a long time for performing marriages and other functions and for meeting their daily need of water, has gone unrebutted.
Concededly, in revenue record, Plot No. 456 is recorded as village abadi. The existence of well over the suit property is not in dispute. Though it is sought to be argued that it is private well of the petitioners but as noted above, no such plea was raised before the trial court by the petitioners as they have not filed any objection to the injunction application. Even if such plea is raised, it would be matter of trial as to whether the well is public or private.
Having regard to the above facts, this Court finds no illegality in the impugned order of the appellate court directing the parties to maintain status quo.
The petition lacks merit and is dismissed accordingly.
(Manoj Kumar Gupta, J.) Order Date :- 22.8.2019 skv