IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 128 of 2009 Mastan Singh S/O Late Sri Kesar Singh, R/O Bhagangarh, Kailash Gate, Munikireti, District Tehri Garhwal. … Defendant-Appellant. Versus 1. Sri Bharat Ji Maharaj An Idol Installed in the Mandir Sri Bharat Ji Maharaj, Rishikesh, District Dehradun through its Mahant and Gaddi Nashin Mahant Ashok Prapann Sharma. 2. Mahant Ashok Prapann Sharma, Chela Mahant Paras Ram Ji Mahant and Ganndi Nashin, Mandir Shri Bharat Ji Maharaj, Rishikesh, District Dehradun. …Plaintiff- Respondents. Mr. J.P.Joshi, Advocate, learned counsel for the appellant. Mr. L.K.Tiwari, Advocate, learned counsel for the respondents. Date June 02, 2010. Hon’ble B.S.Verma, J. This appeal under Order 43, Rule 1(r) of the Code of Civil Procedure is directed against the judgment and order dated 6- 3-2009 passed by the District Judge, Tehri Garhwal, in Original Suit No. 41 of 2008, Shri Bharat Ji Maharaj Ji and another Vs. Sri Mastan Singh, whereby the application of the plaintiffs for grant of temporary injunction has been allowed and the defendant-appellant has been restrained from interfering in any manner either himself, through his agents, servants and employees etc. in the rights of the plaintiffs over the property in suit. The defendant has further been restrained from transferring or alienating the suit property or any part thereof to any person to the prejudice and detrimental to the rights of the plaintiffs. He is further restrained from making any change in the suit property during the pendency of the suit. The plaintiffs have filed the suit for a decree of possession in respect of the property detailed and described in the schedule appended to the foot of the plaint against the defendant. Plaintiffs have also sought decree of perpetual injunction and mesne profits against the defendant. The plaintiffs have also sought a decree of declaration declaring the alleged sale-deed dated 23/24- 2 9-1991, alleged executed by Shri Rajendra Prasad and others in favour of the defendant as ineffective, inoperative, sham, bogus and void ab initio, with the allegations that the plaintiff no.1 was the owner of entire village Rishikesh, Pargana Parwa Doon, Tehsil Dehradun. Plaintiff No. 1 is an idol installed in the temple known as Bharat Mandir. Plaintiff No. 2 is Mahant Gaddi Nasheen of the said temple and also manager of the properties of idol and temple. He is de facto and de jure Mahant and manager of the temple and its property. The suit property measuring 1200 sq. yards is situated in plot No. 18 to 41 and 51 of village Rishikesh, which is now known as Kailash Gate, Muni-ki-Reti, Tehri Garhwal. The provisions of U.P. Zamindari Abolition and Land Reforms Act did not apply to the said property. The plaintiff no.1 is the owner of the suit property and other properties of the then village Rishikesh. The State of UP. Issued a Notification on 26-3-1976 under Section 11 of the U.P. Land Revenue Act and transferred various plots of village Rishikesh including plot nos. 18 to 41 and 51 to village Dhaluwala, district Tehri Garhwal and the said property is now situate in Patti Dhamandsyu, Tehsil Narendra Nagar. Earlier one Balraj Kumar was a tenant of the plaintiff against whom the plaintiff filed suit bearing S.C.C. Suit No. 48 of 1981 for ejectment and other relief. The suit was decreed vide judgment and decree dated 31-10-1987 passed by the J.S.C.C./Munsif, Tehri Garhwal. Revision filed against the said judgment and decree was dismissed by order dated 4-2-1989 passed by the District Judge. Ultimately, the decree was executed in Execution Case No. 9 of 1989 against the defendant Balraj Kumar and the possession was delivered to the plaintiff on 18-4-1991. It appears that a proceeding under Section 145 of the Code of Criminal Procedure was initiated against the defendant in which the defendant took a plea that the said property belongs to him, which was allegedly purchased in the year 1969 from Mukund Ram. According to the plaintiff no one other than the plaintiffs is the owner of the said property. Ultimately the proceedings under Section 145 of the Code of Criminal Procedure were dropped in 3 favour of the plaintiff by order dated 29-1-2000 passed by Sub Divisional Magistrate Narendra Nagar. The defendant filed revision before the Sessions Judge, which was allowed vide order dated 9-8-2002 and it was ordered that the possession of the property be delivered to the defendant. Aggrieved, the petitioner filed a Criminal Revision in the High Court. The defendant filed counter affidavit in that case asserting that the defendant has acquired rights by sale-deed dated 23/24th September 1991 executed in his favour by Rajendra Prasad and others. According to the plaintiffs, the plaintiffs are in proprietary possession of the suit property. It is also alleged that the possession of the defendant taken through the report of Tehsildar is illegal and void ab initio. He has no right to be in possession of the said property. Defendant has no legal right, title or interest in the suit property. The defendant is threatening to change the nature of the land. The defendant resisted the suit by filing his written statement as well as objection against the temporary injunction application supported by affidavit and other documents. The defendant has denied ownership of the plaintiffs over the suit property and has also denied other allegations made in the plaint. The defendant has asserted his continuous possession over the disputed property since last 40 years and has alleged that the property was purchased by him in the year 1969 from one Mukund Ram. The possession of the disputed property was delivered to the defendant on 19-8-2002 on the basis of order dated 9-8-2002 passed by the Sessions Judge in Criminal Revision No. 3 of 2000. The criminal revision filed against the order of the Sessions Judge was dismissed by the High Court on 10-1-2008 and the Special Leave Petition preferred before the Supreme Court has also been dismissed on 16-4-2008. According to the defendant, the plaintiffs were never in possession of the suit property. The name of the defendant has been mutated in the revenue records. Plaintiffs are not the owner of the property and they have no right to file the suit 4 against the defendant, who is the real owner on the basis of sale deed. Both the parties filed evidence by way of affidavits to substantiate their respective claims. The learned District Judge after hearing both the parties and considering the material placed on record came to the conclusion that all the three ingredients for grant of temporary injunction, namely, prima facie case, balance of convenience and irreparable loss, are in favour of the petitioners. Consequently, the impugned order dated 3-3-2009 has been passed, as mentioned earlier, which gave rise to the present appeal. On behalf of the respondents, counter affidavit has been filed in this appeal. I have heard learned counsel for the parties and perused the material placed before this Court. The impugned order has been assailed mainly on the ground that that it is the admitted case of the plaintiff-respondents that the defendant has been in possession of the suit property and, therefore, the plaintiffs have made the very first prayer for a decree of possession against the defendant. It has also been contended by the learned counsel for the appellant that even issues were not framed in the suit. Learned counsel for the appellant has vehemently argued that since the defendant has been in possession of the suit property, therefore, the first part of the injunction order passed by the learned District Judge restraining the defendant from interfering in any manner in the rights of the plaintiffs over the property in suit cannot be sustained in the eye of law. Learned counsel further contended that if this part of the order is allowed to stand, it will adversely affect the defence of the defendant, who is in lawful owner and in possession of the suit property. Learned counsel for the appellant also contended that the defence evidence of the defendant is yet to be brought on record after framing of the issues, therefore, unless and until the possession of the defendant is held to be illegal, no such injunction order can be granted in favour of the plaintiffs, rather it would amount to grant of final relief of possession sought for by the plaintiffs in the suit. Learned counsel 5 for the appellant drew the attention of this Court to the first relief of decree for possession sought by the plaintiffs in the suit. I have perused the written statement filed by the defendant-appellant in the suit. The defendant has asserted in reply of paragraph no. 6 of the plaint that the defendant has been in exclusive possession over the suit property for the last 40 years. The plaintiffs had never been in possession of the said property. The defendant has clearly asserted in the additional pleas in para 27 of the written statement that the defendant is the owner in possession of the suit property and the said property is recorded in the name of the defendant in the revenue records. It is not disputed that issues have not been framed in the suit and the evidence of the parties is yet to be recorded after framing of issues. Having heard the submission of the learned counsel appearing for the parties and having gone through the material on record including the impugned order passed by the learned District Judge, Tehri Garhwal in Original Suit No. 41 of 2008, I find that the plaintiffs have first sought a decree for possession against the defendant. It also appears that the possession over the disputed property was given to the defendant-appellant in compliance of the order passed by the Sessions Judge in Criminal Revision. At this stage, when the right, title and possession of the plaintiffs have been specifically denied in the written statement and the issues are yet to be framed in the suit and the evidence by the parties has to be led before the trial court after framing of the issues, it cannot be said that the possession of the defendant-appellant over the suit property is outright illegal. Unless and until the issues are framed and evidence is led by the parties before the trial court and finding on the issues is recorded by the trial court, I am of the view that in case the defendant-appellant is ordered to be restrained from interfering in the rights of the plaintiffs over the suit property, it may adversely affect the merits case of the defendant-appellant. In the above facts and circumstances, the first part of the injunction order passed by the trial court is so far as it pertains to restraining the defendant from interfering in the rights of the 6 plaintiffs over the suit property is not tenable in the eye of law. However, the part of the order so far as it relates to restraining the defendant from transferring or alienating the suit property or any part thereof or transferring its possession or any part thereof to any person and restraining the defendant from making any change in the suit property during the pendency of the suit does not warrant any interference. Accordingly, the appeal deserves to be partly allowed. The appeal is partly allowed. The application 8C filed by the plaintiffs-respondents for grant of temporary injunction stands partly allowed. Accordingly, the part of the impugned injunction order dated 3-3-2009 passed by the District Judge Tehri Garhwal is set aside in so far as it restrains the defendant from interfering in any manner either himself, through his agents, servants and employees etc. in the rights of plaintiffs over the property in suit during the pendency of the suit. The rest part of the impugned order is maintained. The appellant-defendant shall not create third party interest in the suit property during the pendency of the suit. Costs easy. It is directed that the trial court shall decide the Original Suit No. 41 of 2008 between the parties on merits, expeditiously as far as possible, preferably within a period of one year from the date of production of certified copy of this order. Both the parties shall co-operate in the speedy disposal of the suit. (B.S.Verma, J.) RCP 7