Gurucharan Singh vs State Of Uttarakhand & Another

Pankaj Purohit, J

The present petition under Article 227 of the Constitution of India has been filed by the petitioner against the order dated 22.09.2023, to the extent the learned trial court has refused to pass ad interim injunction in favour of the petitioner-plaintiff.

Heard learned counsel for the parties.

It is submitted by learned counsel for the petitioner that petitioner-plaintiff has constructed a house on Khasra No.602 of Khata No.429 admeasuring 0.092 hectare situated in village Bukanpur, Pargana, Jawalapur, Tehsil and District Haridwar.

It is the case of the petitioner-plaintiff that the house in-question was constructed in the year 1967 and the family of the petitioner-plaintiff has been residing on the said house since 1967 continuously without any interference by anyone. As per the plaint case, during the consolidation proceedings erroneously the land over which the house is constructed was recorded as manure pit in the revenue records and according to the petitioner-plaintiff, this is due to the carelessness of the consolidation Lekhpal. On a complaint made by one Shri Harjinder Singh, the respondent no.1 and its authorities are threatening for the demolition of the said house on which the petitioner claimed possession.

On these set of facts, petitioner filed the original suit with an application under Order 39 Rule 1 & 2 of CPC with a prayer for interim protection by way of temporary injunction in favour of the petitioner-plaintiff restraining respondents and its authorities or any person under them to interfere with the peaceful possession of the petitioner-plaintiff. The learned trial court did not find the case emergent enough to issue ex-parte interim injunction in favour of the petitioner-plaintiff, rather chose to issue notice to the respondents vide order dated 22.09.2023.

It is submitted by learned counsel for the petitioner-plaintiff that plaintiff has taken steps in the matter and now the suit has been fixed for 12.01.2024.

From perusal of the record, it appears that the respondents have not been served. However, respondents are authorities, one is the State Government and another is the Gram Sabha.

Learned counsel for the petitioner prayed for some protection to the petitioner-plaintiff with regard to the property in-question.

Per contra, learned State Counsel has drawn the attention of this Court to the plaint and submitted that there is no such averment which would suggest that the house in-question was under threat of demolition.

Having heard the rival contention of learned counsel for the parties and from perusal of the plaint, it is reflected that house in-question was existing on the land for the last 56 years. Even before that, the land over which the house was constructed, was in possession of the predecessors of the petitioner-plaintiff. It is the case of the petitioner-plaintiff that the land has wrongly been shown as manure-pit in the revenue records in consolidation proceedings.

In this view of the matter, the petition is disposed-off finally with a direction to the learned court below to expedite the hearing of the application moved by the petitioner-plaintiff under Order 39 Rule 1 & 2 of CPC, in view of the provisions of Order 39 Rule 3A of CPC, which enjoins upon the court to decide the application of the temporary injunction within a period of 30 days and if such application is not decided within that period, the reasons should be recorded by the court below for not deciding the said application; accordingly, the same be decided within two weeks from the date of production of certified copy of this order. Petitioner-plaintiff shall be under a duty to serve the respondents by all modes of service available to him.

In between, till the application under Order 39 Rule 1 & 2 CPC is decided by the learned trial Court no coercive measures shall be taken against the petitioner with regard to the property in-question.

However, it is made clear that the observations made hereinabove are only for the purpose of the decision of the writ petition, which shall not come in way of decision of the suit on merits.