Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 3990 of 2018 Petitioner :- Smt. Ramshree And 6 Others Respondent :- Ashish Jaiswal And 2 Others Counsel for Petitioner :- Sanjay Agrawal Counsel for Respondent :- C.S.C.,Siddharth Niranjan
Hon'ble Vivek Kumar Birla,J.
Heard Sri B.N. Agrawal, learned counsel appearing for the petitioner and Sri D.P. Singh, learned Senior Advocate, assisted by Sri Siddharth Niranjan, learned counsel appearing for the caveator respondent.
Present petition has been filed seeking setting aside the judgment and orders dated 5.2.2018 and 20.3.2018 passed by the courts below filed as Annexures 8 and 9 respectively to the petition.
By the impugned order dated 20.3.2010 the trial court rejected the interim injunction application filed by the petitioner on the ground that the land in question being Gata No. 285 area 0.142 Hectare has been recorded as Class 5-3 (Da) as Banzar land and the name of the plaintiff was deleted and the name of the State was recorded on 21.7.2016. The appeal was also dismissed by the lower appellate court. The claim of the defendants was that the suit property had already been included in the roadside patari of a by-pass. This fact has been disputed by the plaintiff petitioner herein.
Submission of learned counsel for the petitioner is that the finding on possession has not been given by the court below and the finding on prima-facie case has been incorrectly decided. He further submitted that challenging the order dated 23.6.2016 passed by the Commissioner, Jhansi Division, Jhansi a second appeal has been filed before the Board of Revenue, which is still pending and therefore, the courts below have incorrectly rejected the interim injunction application.
Per-contra, submission of Sri Dharam Pal Singh, learned Senior Counsel appearing for the caveator respondent is that the name of the petitioner is not recorded in the revenue record, therefore, the suit itself does not lie before the Civil Judge. By placing certified copy of the order dated 23.6.2016 passed by the Commissioner, Jhansi Division, Jhansi it has been pointed out that even in Aakar Patra 45 of the year 1980-81 Fasli the land was recorded as Banzar land and in Khatauni years 1414-1419 Fasli the land is recorded by Class 5 - 3 (Da) as agricultural Banzar land and in Khasra of the year 1389 Fasli the land is recorded as Banzar land. The Commissioner has further recorded a finding that from the record the possession of the respondents (petitioners herein) is not established.
The categorical case of the State before the trial court was that the land in question belongs to the State of U.P. and is recorded as Banzar and on this ground itself the suit is barred by Section 41 of the Specific Relief Act as well as Sections 229-B and 331 of the U.P. Z.A. & L.R. Act.
There is no doubt that appeal is pending before the Board of Revenue, however, admittedly no interim order has been passed in favour of the petitioner. In so far as submission of learned counsel for the petitioner that the court below has not recorded any specific finding regarding possession of the petitioner is concerned suffice to note that in the order dated 23.6.2016 the Commissioner has recorded that the petitioners herein are not found to be in possession and no interim order was granted in their favour by the Board of Reveue coupled with the fact that prima-facie the suit itself may not be maintainable in view of the provisions as mentioned above.
In such view of the matter, I do not find any legal infirmity in the order impugned herein.
It is, however, made clear that the court below shall proceed to consider the case on its own merits without being influenced by any observations made by this Court in the aforesaid order.
This petition is devoid of merit and is, accordingly, dismissed. No order as to costs.
Order Date :- 30.5.2018 p.s.