Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8435 of 2018 Petitioner :- Kanhaiya Lal Respondent :- Vanshraj And 13 Others Counsel for Petitioner :- Ashutosh Pandey,Shashi Prakash Mishra Counsel for Respondent :- Rakesh Kumar Srivastava
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Shashi Prakash Mishra, learned counsel for the petitioner and Sri Rakesh Kumar Srivastava, learned counsel for the respondents.
The present petition is directed against the order dated 8.8.2018 passed by the Additional District Judge-III, Basti in Misc. Appeal Civil Appeal No. 50 of 2009 [Vanshraj vs. Dashrath (Since deceased) and others] whereby the temporary injunction order dated 29.8.2009 passed by the trial court has been set aside and the injunction application paper no. 6-Ga was rejected.
Learned counsel for the petitioner submits that the trial court has rightly granted injunction in favour of the plaintiff recording that the plaintiff has made out the prima facie case with regard to the ownership and possession over the suit property which was purchased by him vide sale deed dated 22.11.1978. The name of the petitioner/plaintiff and that of the defendant had been recorded in Aakar Patra-23 (paper no. 13-Ga) over the suit property. The defendant though claimed that identification of the share of the plaintiff and the defendant had been done in an oral partition arrived between the parties but no such record was produced before the Court below. In order to protect the interest of the parties, an order directing them to maintain status quo had been passed by the trial Court. There was, therefore, no occasion for the First Appellate Court to interfere in the same.
On a pointed query made by the Court as to the share of the petitioner in plot no. 271M., as purchased by him vide sale deed dated 7.10.1978, it is informed that 1/4th share of Smt. Sukhraji was purchased by the petitioner who was the co-sharer of 1/4th share in plot no. 271M. However, it is admitted to the petitioner that the boundaries of the plots purchased by him have not been indicated in the sale deed. No such detail has been given at the foot of the plaint while giving description of the suit property. In the plaint map, the suit property has been mentioned with the letters 'a', 'ba', 'sa' and 'da', which is lying on the other side of the road running between rest of the portion of the property owned by the petitioner.
The First Appellate Court has recorded a categorical finding that as per the Amin report, the total area in possession of the plaintiffs is 70 Dhoor whereas the sale deed in his favour was only for an area of 28 Dhoor. In view of the said facts, the plaintiff has not been able to provide sufficient evidence so as to identify the suit property shown by letters 'a', 'ba', 'sa', and 'da' being his own property and hence no prima facie case has been made out so as to grant temporary injunction as against the co-sharers.
For the said findings recorded by the First Appellate Court which could not be challenged by the learned counsel for the petitioner in the present petition, no interference is required.
The present petition under Article 227 of the Constitution of India is found devoid of merits and hence dismissed.
Order Date :- 27.11.2018 Brijesh