Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8027 of 2018 Petitioner :- Radhdy Shyam Pandey Respondent :- Pilloo(Since Deceased) And 08 Others Counsel for Petitioner :- Rajesh Kumar Singh,Ashwani Kumar Mishra Counsel for Respondent :- Rahul Mishra
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Rajesh Kumar Singh and Sri Ashwani Kumar Mishra, learned counsel for the petitioner and Sri Rahul Mishra, learned counsel for the respondent.
The Temporary Injunction Application filed by the plaintiff in Original Suit No. 92 of 2013 (Radhey Shyam Pandey Vs. Pilloo and Others) has been rejected by the Courts below on the ground that the plaintiff has failed to make out a case of the suit property being his own land. The dispute is with regard to a 'Madai' which is shown by letters 'Ka', 'Ka1', 'Ka2' and 'Ka3' in the plaint map. In order to ascertain the position of the suit property the Courts below had issued an Amin Commission which had submitted a report with a sketch map dated 01.04.2013.
A perusal of the Amin Report shows that in between the house of the plaintiff and the disputed property namely, Madai (shown by letters 'Ka', 'Ka1', 'Ka2' and 'Ka3') there exists two hand- pumps and several trees. The Amin Report is incomplete in respect of the ownership of the hand-pump and trees attached over the land within which the suit property 'Madai' exists.
A further perusal of the Amin Report indicates that their is one well and a Kali Mandir (temple) nearby the suit property. The plaintiff has stated in Paragraph 4 of the plaint that the entire portion of land lying over the northern side of his house was being used by the plaintiff and the defendants IInd Set, who have installed their hand-pumps and constructed Kali Mandir being devotees thereof. It is also contended therein that the suit property shown by the letters 'Ka', 'Ka1', 'Ka2' and 'Ka3' belongs to the petitioner and it had demolished being quite old. The place in question is being used by the plaintiff for the purpose of tying his cattle etc.
A perusal of the plaint map and the Amin Report indicates that the house and Sahan of the contesting defendants Ist Set exist on the other side of the road. In between the disputed property which is in front of the plaintiff's house and that of the defendants Ist Set, there exists a Khadnja Road and Pakki Nali.
In the said circumstances, it is evident that both the Courts below have ignored the fact that the Amin Commission Report is not complete in all respects. The report only indicates that the well existing in the plot in question belongs to one Srikant son of Sri Tilkeshwar but there is no mention of the ownership of the trees and other attachments to the land over which the disputed 'Madai' exists, such as hand-pumps etc.
For the aforesaid, this Court is of the considered view that both the Courts below have erred in dismissing the temporary injunction on the basis of the Amin Report by concluding that the plaintiff has failed to establish his prima facie right over the suit property 'Madai' shown by letters 'Ka', 'Ka1', 'Ka2' and 'Ka3'.
The question as to who had planted the trees and installed hand- pumps over the land which surrounded the suit property 'Madai' becomes relevant.
For the aforesaid, while setting aside the order dated 26.9.2018 passed by the Additional District Judge (IV) Azamgarh in Appeal No. 23 of 2016 and also the order dated 31.5.2013 passed by Civil Judge (J.D.) City Azamgarh in Suit No. 92 of 2013 (Radhey Shyam Pandey Vs. Pilloo and Others) of rejection of the temporary Injunction Application, the present petition is being disposed of with the direction to the trial Court below namely the Civil Judge (JD), City Azamgarh to call for a fresh Commission Report so as to find out the correct position of the site in question.
The Courts below shall ensure that fresh Amin Commission is conducted in the presence of the contesting parties and all other persons who may have right over the suit property. An opportunity be granted to the contesting parties to file their objection to the Amin Commission Report.
An endeavour shall be made by the trial Court below to decide the matter of temporary injunction expeditiously, preferably within a period of three months from the date of submission of certified copy of this order after completion of all formalities as directed herein above.
Subject to the above, the present petition is allowed. Order Date :- 26.10.2018 Kamar