Court No. - 42
Case :- MATTERS UNDER ARTICLE 227 No. - 9810 of 2019 Petitioner :- Mohd. Usman Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Suresh Chandra Varma,Rajesh Kumar Singh Counsel for Respondent :- C.S.C.,Manoj Kumar Yadav
Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard learned counsel for the petitioner and perused the orders impugned.
2. The petitioner has filed this writ petition praying for quashing of the order dated 24.08.2019 passed by the Civil Judge (Junior Division), Jaunpur, rejecting his application for temporary injunction as well as the order dated 28.11.2019 passed by the Additional District and Sessions Judge, Jaunpur in Misc Civil Appeal filed thereafter.
3. It has been submitted by learned counsel for the petitioner that the petitioner is in possession of the area of 0.036 acres (equal to 36 dismal) of plot no.173, which is an abadi land. The said 36 dismal included 9 dismal of land for which the lease had been granted to the collaterals of the petitioner. Initially, the petitioner was proceeded against under Rule 115 C of the U.P.
Z.A. & L.R. Act for encroaching on Gaon Sabha land. The proceedings were concluded against him. Thereafter, the petitioner filed a Revision, which Revision was partly allowed and an area of 9 dismal for which the petitioner had been given the patta was saved. The petitioner being aggrieved by the said order filed a Writ Petition, namely, Writ C No.3621 of 2019: Usman Vs. The Collector and three others. This Court disposed of the petition on 14.02.2019 with a direction to the petitioner to file an application for temporary injunction in the original suit which was already pending before learned trial court, namely, Original Suit No.2 of 2017 for declaration that he was the owner in possession of the property in dispute. A direction was issued to the learned trial court to decide the aforesaid application for temporary injunction within two months and for a period of two months, this Court directed for maintenance of status quo.
Now the application for temporary injunction has been rejected by learned trial court by the order dated 24.08.2019 with the observation that the petitioner admittedly has patta of only 9 dismal of land of abadi plot no.173. On the other hand, a map which the petitioner has filed along with the plaint does not show exactly which part ad measuring what area, the petitioner is occupying of Araji no.173. Learned trial court came to the conclusion that in the map that was annexed with the plaint, there is mention of boundary wall of the petitioner and a drain towards the north of the said boundary wall but there was a discrepancy as in other documents and area of plot Araji No.172 was shown towards the north of the boundary wall.
4. It has been further submitted by the learned counsel for the petitioner that the petitioner had clearly mentioned in his plaint the area in his possession of Araji No.173 and he has also mentioned in paragraph-6 of the writ petition that he is in possession of 36 dismal of plot no.173 and this 36 dismal includes 9 dismal of land for which patta had been granted to the collaterals of the petitioner.
5. This Court has considered the orders impugned. Learned trial court had found that no prima facie case had been made out for grant of a declaration in favour of the petitioner to be the owner in possession of the land in dispute and therefore there was no question of balance of convenience and irreparable loss being considered. The Appellate Court has observed that it has gone through the order passed by learned trial court and found that it is within the jurisdiction of learned trial court to make such observations as it has done in the order dated 24.08.2019. There being no illegality or factual infirmity in the order, the Appellate Court refused to interfere.
6. This Court finds that the petitioner is claiming 36 dismal of land instead of 9 dismal allotted to him. The proceedings under Section 115 C of U.P. Z.A. & L.R. Act have been concluded against him. The Revision filed by the petitioner against the order passed under Rule 115 C was only partly allowed to the extent for 9 dismal of land to be shown as his patta. The petitioner thereafter filed a writ petition, which has also been disposed of without interfering in the revisional order and the revisional order has attained finality. The petitioner's suit for declaration may be eventually allowed but, at this point of time, no prima facie case is made out for grant of temporary injunction as has been held by learned trial court and the Appellate Court.
7. The writ petition stands dismissed.
Order Date :- 17.12.2019 Rahul