Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 7929 of 2018 Petitioner :- Ramashankar Singh Respondent :- Executive Engineer, Jamaniya And 2 Others Counsel for Petitioner :- Rajesh Kumar Singh Counsel for Respondent :- C.S.C.
Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioner and perused the record.
The petitioner had instituted Original Suit no. 307 of 2016 for permanent injunction. The suit land was denoted by letters A, B, C and D and was allegedly located over plot no. 410.
During the pendency of the suit an application was filed seeking temporary injunction which was rejected by order dated 06.02.2018 passed by the Civil Judge (Senior Division) Ghazipur on the ground that plot no. 410 was Minijumla and unless there was proper demarcation by Revenue Court, injunction in respect of any specific portion of the plot cannot be granted. Against the order passed by the trial court, the petitioner preferred Misc. Appeal No. 33 of 2018 which has been rejected by order dated 10.07.2018 passed by the District Judge, Ghazipur.
Aggrieved by the orders passed by the courts below, the instant petition has been filed.
The learned counsel for the petitioner has placed reliance on a demarcation report dated 04.08.2018 to suggest that the Irrigation Department has occupied the portion belonging to the petitioner.
Admittedly, the demarcation report on which reliance has been placed by the petitioner was not before the trial court or before the appellate court at the time when the injunction prayer of the petitioner was considered.
Under the circumstances, the prayer to set aside the orders passed by the court below on a subsequent report, as alleged, cannot be accepted. However, it is left open to the petitioner to file a fresh injunction application by annexing therewith the demarcation report to substantiate his case. In case any such fresh injunction application is filed, the court concern shall consider and decide the same in accordance with law, after examining whether on the basis of demarcation report, as alleged, case is made out for grant of injunction in favour of the petitioner.
Needless to observe that the fresh application shall be considered and decided after giving opportunity of hearing to the parties concerned.
It is made clear that on the claim of the petitioner that demarcation has taken place, in which the disputed property has been found to fall in the share of the petitioner, no opinion has been expressed by this court. All the above aspects shall be considered by the trial court after examination of the documents brought on record.
With the aforesaid liberty and observations, this petition is disposed off.
Order Date :- 30.10.2018 sweta