Rambali vs District Judge and Others

Anjani Kumar, J.—This writ petition was dismissed by me vide my order dated 8th August 2002, for the reasons to be recorded later on. Now here are the reasons for dismissing the aforesaid writ petition.

This writ petition under Article 226 of the Constitution of India arising out of rejection of an application of injunction filed by the Plaintiff under Order XXXIX, Rule 1 of the Code of Civil Procedure. The brief facts of the case are that the Plaintiff filed a suit being O.S. No. 751 of 1998 for permanent injunction and in the said suit, an application for temporary injunction was filed with the prayer that the Defendant be restrained from interfering with the peaceful possession of the Plaintiff over plot No. 244 area 0.158 acre ; plot No. 235 Milzumla area 0.490 acre situated in village Chautarva, Tappa Khajuri, Pargana Hasanpur-Maghar Tehsil Khajani, district Gorakhpur and plot No. 2 area 0.081 acre situated in village Khairi Tappa Bankata, Pargana Unwal, Tehsil Khajani, district Gorakhpur. The trial court has considered the case set up by the Plaintiff and the objection raised by the Defendant. It is admitted case of the parties that both Plaintiff and Defendant are co-sharer to the extent of one half each. The claim of the Plaintiff is that he is in possession over the plots, referred to above, by virtue of documents paper 11G and 12G. It is admitted that in the relevant revenue record, both the parties were entered into as non-transferable bhumidhar and in khatauni 131G, plot No. 235 was alone in the name of Defendant.

The trial court has considered the case and recorded that though it is not disputed that both the parties are owner of one half each of the plots in dispute and the case of the Defendant that this plot is allotted to him by way of lease as the land has been declared surplus in the ceiling proceeding, but the aforesaid fact is not corroborated by the document 15G, copy of the khatauni, wherein the Defendant was recorded as bhumidhar with non-transferable right. In this view of the matter, even if there was an agreement, which has yet to be tried and decided in the suit, no case for grant of temporary injunction is made out, the application 7G, therefore, has been rejected by the trial court vide its order dated 28th May, 1999, a copy of which is annexed as Annexure-6 to the writ petition.

Aggrieved by the aforesaid order dated 28th May, 1999, Plaintiff preferred an appeal before the lower appellate court. The lower appellate court vide its order dated 26th October, 1999 affirming the findings recorded by the trial court with regard to the refusal for grant of interim injunction dismissed the appeal. Sri H. N. Singh, learned Counsel appearing on behalf of the Petitioner tries to argue that the findings recorded by both the courts below are not sustainable and, therefore, the court below has cursorily erred in refusing to grant interim injunction and rejecting the application 7G.

Learned Counsel for the Petitioner has failed to demonstrate that the findings recorded by the trial court and affirmed by the lower appellate court suffer from any manifest error of law. That being the legal position, the orders impugned in the present writ petition being order of affirmance do not warrant any interference by this Court under Article 226 of the Constitution of India.

This writ petition, therefore, is devoid of any merits and is, accordingly, dismissed. The interim order/orders, if any, stands vacated. However, on the facts and circumstances of the case, the parties shall bear their own costs.