Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 365 of 2019 Petitioner :- Madhu Sudan Upadhyay Respondent :- Tara Chandra Upadhyay (Deceased) And 5 Others Counsel for Petitioner :- Ramesh Chandra,Aqeel Ahmad Counsel for Respondent :- Mithilesh Kumar Mishra
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties and perused the records.
The present petition is directed against the order of rejection of temporary injunction application and affirmation thereof made by the first appellate court. The admitted facts reflected from the records are that the present suit has been filed in relation to plot no.83 area 1.97 decimal, Mauza Sultanpur Tapa, Sukhpura, Pargana Khareed, District Ballia. As per the plaint averments, the name of the plaintiff's grandfather namely Banshidhar Upadhyay was recorded in the relevant record of rights namely Khatauni and Khasra prior to the institution of the suit. It was contended that the plaintiff was continuing in possession of the land in question and defendants namely Tara Chand Upadhayay had illegally interfered in his peaceful possession. It is admitted that the grandfather of the petitioner namely Banshidhar Upadhayay had entered into an agreement to sell with respect to Chak No.143 area 1.86 decimal. An original suit 106 of 1982 was filed by the Tara Chand Upadhayay for specific performance of the said agreement which was decreed on 13.10.1986. The said decree has been affirmed with the dismissal of Appeal no.22 of 1992 filed by grandfather of the plaintiff, vide judgement and order dated 31.07.2000. The said decree was put to execution in Execution Case No.01 of 1986 which was finally decided on 20.07.2001 with the execution of the sale deed dated 04.06.2001. Admittedly, the said sale deed was executed with regard to plot no.83 area 1.97 decimal, which was got by the plaintiff's grandfather namely judgement debtor in exchange of his chak number in 143, area 1.86 decimal during the course of consolidation, which had intervened in the village.
Admittedly, no objection whatsoever has been taken by the grandfather of the plaintiff by moving any application under Order 21 Rule 95 C.P.C. With the execution of the sale deed dated 04.06.2001 through court in relation to the suit property, which is subject matter of the instant suit, the trial court has opined that no injunction can be granted.
The first appellate court has rightly also refused to interfere for the same reason.
Assailing the order impugned, it is contended by learned counsel for the petitioner that no dispute whatsoever could be raised by the defendants about the possession of the plaintiff over the plot in question i.e. plot no.83 area 1.97 decimal. The name of the grandfather of the plaintiff Sri Banshidhar Upadhayay is still recorded over plot no.83 and the copy of the extract of Khasra of 1425 fasli has been brought on record of the instant suit to assert that the trial court had ignored the fact of possession of the plaintiff over the suit property. It is contended that the question of title is not subject matter of consideration in a suit for injunction which is a simplicitor suit filed by the plaintiff to protect his possession over the suit property. The trial court could not have ignored the fact that the plaintiff is still in possession of the suit property and is cultivating the same.
All these submissions of learned counsel for the petitioner are disputed by learned counsel for the respondents with the support of the reasoning given by the trial court and the first appellate court.
Having noticed the fact that the decree of specific performance of agreement passed on 13.10.1986 against the grandfather of the plaintiff, had been executed by the competent court of civil jurisdiction, with regard to the suit property and that no objection was taken by the judgement debtor during his life time with regard to the sale deed dated 04.06.2001 being executed with respect to the plot no.83 area 1.97 decimal, this Court finds that the plaintiff's grandfather had left with no right over the suit property, so as to pass on a right to the plaintiff to assert his possession of being owner of the same.
It is clear that the title in the suit property had been passed on in favour of Tara Chand, the defendant in the instant suit by execution of a valid sale deed dated 04.06.2001 through court and the same has neither been challenged nor has been cancelled by any court of law.
For the said fact, the plaintiff's possession over the suit property cannot be said to be of an owner and he cannot have a better title than that of the defendant, it is evident that he has not been able to make out a prima facie case for grant of temporary injunction. The balance of convenience lies in favour of the defendants and in case of any temporary injunction being granted in favour of the plaintiff, the defendants would suffer grave and irreparable loss.
For the aforesaid, this Court does not find any justification to interfere. However, it is made clear that the findings returned hereinabove are only in order to examine the claim of the petitioner for grant of temporary injunction. The observations made hereinabove would not come in the way of the plaintiff in disposal of the suit, which is to be considered by the trial court independently without being influenced by any of the observations made herein above, on the evidence led by the parties.
The present petition is found devoid of merits and hence dismissed.
Order Date :- 22.2.2019 Himanshu