IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 871 of 2010 (M/S) Anil Agarwal S/o Shri S.K. Agarwal ..……… Petitioner. Versus Sri Preeti Kumar and others ……… Respondents Mr. Arvind Vashistha, Advocate for the petitioner. Mr. A Rab, Advocate for the respondents. Hon’ble Tarun Agarwala, J. Heard Shri Arvind Vashisth, the learned counsel for the petitioner and Shri A Rab, the learned counsel for the respondents. The petitioner is the plaintiff and filed a suit for permanent injunction against the defendant No.1 praying that the said defendant alongwith his servants, agents, employees,etc. be restrained from trespassing or dispossessing or evicting the plaintiff from the property in suit forcibly without adopting due process of law. The plaintiff contended that he alongwith his father had developed the property and had built several flats and that the plaintiff had spent a certain amount of money which his parents had acknowledged and had also agreed to repay to the plaintiff which they did not do so. On the other hand, the defendant No.2 and 3 who are parents of the plaintiff illegally sold the property to the defendant No.1. The plaintiff submits that the plaintiff alongwith his parents were living jointly and that he is in possession of the ground floor of the main house alongwith the out house, a terrace and old stable and, therefore, the defendant should be restrained from dispossessing the petitioner forcibly and that the defendant should adopt due process of law. Alongwith the plaint, an application for temporary injunction was filed under Order 39 Rule (1) and (2) of the C.P.C. 2 The trial court, after considering the material brought on record, rejected the application of the plaintiff for grant of temporary injunction contending that the plaintiff could not make out any prima-facie case for grant of a temporary injunction. The plaintiff, being aggrieved, filed an appeal before the appellate court. The appellate court partly allowed the appeal holding that the plaintiff was in possession of one room as mentioned in the sale deed and, therefore, the defendant No.1 was restrained from evicting the plaintiff from this particular room. The plaintiff, being aggrieved by the orders of the trial court as well as of the appellate court, has filed the present writ petition. The learned counsel for the petitioner submitted that the material evidence which were filed by the plaintiff was not considered either by the trial court or by the lower appellate court which was a decisive factor in coming to the conclusion that the petitioner was in possession of the entire ground floor of the main house alongwith terrace and old stables, namely, the out houses and inspite of this evidence being brought on record, the lower appellate court failed to appreciate the evidence. The learned counsel for the petitioner submitted that the lower appellate court has only considered the sale deed which indicated that the petitioner was in possession of one room which was incorrect, in as much as, from the proceedings u/S 145 Cr.P.C. it was clear that the petitioner was in possession of the ground floor. Further, the defendant No.1 in his notice dated 04/12/2007 written to the parents of the plaintiff, i.e. the defendant No.2 and 3 clearly indicated that he was not given possession of the ground floor and servant quarters. The order u/S 145 Cr.P.C. and the notice issued by the defendant are subsequent to the execution of the sale deed and these documents would clearly indicate that the petitioner was in possession of the ground floor of the main house, etc. 3 Having heard the learned counsel for the petitioner at some length, the Court finds that possession of the ground floor as alleged by the plaintiff is not proved beyond a reasonable doubt from the material brought on record. The plaintiff has shown the schedule of the property which he alleges to be in possession. The property mentioned in the schedule of the plaint is extracted hereunder:- “SCHEDULE OF PROPERTY IN SUIT All that property known as Adare Estate, Mussoorie, measuring consisting of ground floor of the main house along with out house and terrace and old stable” The petitioner alleges that he is in possession of the ground floor of the main house alongwith out house and terrace and old stable. The reply to the notice dated 04/12/2007 issued by the defendant No.1 indicates that some portion of the lower ground floor where 5 out houses were located and which is above the servant quarter on the first floor were not handed over to the defendant No.1. The order u/S 145 Cr.P.C. also indicates that the lower portion of the house is occupied by Anil Agarwal, i.e. the plaintiff and that the purchaser defendant No.1 has also been given the possession of it. The order says that there is a possibility that the dispute may arise between the plaintiff and the defendant No.1 with regard to the open piece of land and that peace could be disturbed at any moment of time. The aforesaid order u/S 145 Cr.P.C. and the reply to the notice, in the opinion of the Court, does not indicate that the plaintiff is in possession of the premises shown in the schedule of the plaint. Since the schedule of the property indicated by the plaintiff does not match with the property disclosed in the reply to the notice by the defendant No.1 as well as in proceedings u/S 145 Cr.P.C., consequently, the Court is of the opinion that the plaintiff cannot take advantage of these two documents. The only 4 categorical evidence of possession of the plaintiff is indicated in the sale deed dated 20th September, 2007 on the basis of which the lower appellate Court has granted a temporary injunction to that extent against defendant No.1. In the light of the aforesaid, this court does not find any error in the impugned order. The writ petition fails and is dismissed. (Tarun Agarwala, J.) Dated 12.07.2010 Shiv