Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 7894 of 2018 Petitioner :- Rajaram And 03 Others Respondent :- Dhanraj And 07 Others Counsel for Petitioner :- Dharmendra Kumar Tripathi
Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioners and perused the record.
In Suit No. 946 of 2006 instituted for permanent prohibitory injunction, the petitioners are defendants. They had moved an application no. 163 Ga in the suit claiming that, in respect of the suit property, a proceeding under Section 176 of the U.P. Z.A. & L.R. Act had been pending before the Revenue Court wherein a preliminary decree had been passed and, thereafter, lots were proposed therefore the injunction suit was not separately maintainable.
The said application was rejected by the trial court vide order dated 13.02.2017 against which revision was filed by the petitioner which has been dismissed by order dated 25.08.2018.
Challenging the order dated 13.02.2017 passed by the trial court in Original Suit No.946 of 2006 and the order dated 25.08.2018 passed by the revisional court in Revision No. 52 of 2017, the instant petition has been filed.
A perusal of the record would reveal that the revisional court has recorded specific finding on two counts: (a) that only a preliminary decree in the partition suit under Section 176 of the U.P.Z.A. & L.R. Act had been passed and that a final decree has not yet been made operative; and (b) that the issue as regards jurisdiction of the suit was framed by the trial court on 24.07.2014 and decided against the defendant on 12.01.2015 and the said order has not been set aside by any higher court therefore that issue could not be reagitated through application no. 163 Ga.
The learned counsel for the petitioner has not been able to dispute the finding returned by the revisional court that the final decree has not yet been implemented. Rather, he has admitted that a challenge has been laid to the final decree and the matter is pending. Further, there is no challenge to the finding that on the question of jurisdiction earlier issue no. 5 was framed which was decided on 12.01.2015 against the defendant and that the said decision was not challenged before higher court or forum.
Under the circumstances, this Court finds no good reason to interfere with the orders dated 25.08.2018 and 13.02.2017 passed by the courts below.
The petition is dismissed.
Order Date :- 29.10.2018 Sunil Kr Tiwari