Court is not inclined to interfere in writ petition if it lacks in merit. : Uttarakhand High Court

HIGH COURT OF UTTARAKHAND AT NAINITAL Writ PetitionNo. 8421 Puran Lal Bhanu Alias Puran Ram Singh and Another …Respondents Advocates : Mr. Sanjay Bhatt Advocate for the petitioner. Hon’ble Sharad Kumar Sharma J. The brief facts which emerges for consideration based on the pleadings raised in the writ petition are that the petitioner before this Court claiming himself to be the owner of the land by virtue of the sale deeds which were executed in his favour on 28.05.1996 and 31.12.1997. If the sale deeds are taken into consideration wherein the property which has been disclosed to be conveyed to him is admittedly shown to be khasra No. 1377 1 having an area of 0.081 hectares situated in village mauja Badamawalapargana Pachhwadoon District Dehradun and the property covered in the second sale deed is yet again a part of the property which was lying in khasra no. 1377 1 having an area of 0.018 hectares i.e. 0.20 acres of mauja Badamawalapargana Pachhwadoon District The plaintiffs have instituted a suit being Suit No. 2312 Ram Singh and another Vs. Pooran Singh for the grant of a decree of permanent injunction on 16.11.2012 in relation to the property which was more particularly described at the foot of the plaint which is described hereunder: Hkwfe ijxuk iNoknwu] rglhy fodkluxj ftyk nsgjknwu] ftldh lhek sa fuEukuqlkj gS%& iwjc esa if”pe esa mRrj esa nf{k.k esa ikuh dh xwy o mlds mijkUr Hkwfe Jh keZiky cnkekokyk &NksVwokyk xzkeh.k ekxZA ikuh dh xwy o mlds mijkUr Hkwfe Jherh ikuks nsohiRuh Jh tokgj flagA The suit accompanied with it an application under Order 39 Rules 1 & 2 of the CPC. The same was considered by the Court of Civil Judge Vikas Nagar Dehradun and the Application which was preferred under Order 39 Rules 1 2 of the CPC was considered under terms and the parameters which had been judicially laid down for the grant of injunction pendentilite the civil proceedings the learned Court while recording its finding on issue No. 1 i.e. the prima facie case the learned trial Court has specifically recorded a finding that as far as the subject matter of the suit is concerned admittedly the plaintiffs respondents happen to be the record owners of the disputed property given in the plaint and the entries in the revenue record too stand as such and while considering the stand taken by the petitioner defendant in his written statement paper No. 82A1 the Court had yet again recorded that by the two sale deeds the property which has been conveyed to him and shown to be lying with khasra No. 1377 1 which is not the subject matter of the suit itself and hence the application under Order 39 Rules 1 & 2 of the CPC was allowed which was put to challenge by the petitioner under Order 43 Rule 1(r) of CPC by preferring a Miscellaneous Civil Appeal being Appeal No. 19 Shri Puran Singh Vs. Shri Ram Singh and another. The same has been dismissed by the Court of Additional District Judge Vikas Nagar Dehradun. These are the two orders which are put to challenge by the petitioner by invoking writ jurisdiction under Article 227 of the Constitution of India. 3 The learned counsel for the petitioner had placed his arguments from the following perspectives: Firstly that the suit was not maintainable. The rationale behind his argument is that the property in question since having been recorded in the revenue records as a revenue land the suit itself would be barred by the provisions contained under Section 331 of the U.P.Z.A. & L.R. Act. With all humility at my command this aspect of maintainability of a suit cannot be an issue to be considered at this stage in the writ petition at the time when an Application under Order 39 Rules 1 & 2 of the CPC is being considered which has been held to be an interlocutory proceedings by virtue of a Full Bench judgement of Allahabad High Court reported in AIR 1991 All. 114 Ganga Saran Vs. Civil Judge Hapur Ghaziabad and others. Even otherwise also the said aspect of maintainability of a suit would always be a subject matter of determination on appreciation of fact under the given set of circumstances of each case and there cannot be a common yardstick which could be applied to decide the issue about the maintainability of the suit and that is why the legislature has provided the protection by Section 331A of the U.P.Z.A & L.R. Act. Hence at this stage this aspect ought to be resisted to be ventured into by the writ Court under Article 227 of the Constitution when it is ceased with the miscellaneous proceedings under Order 39 Rules 1 & 2 of CPC as any finding by this Court may affect the proceedings of suit itself. Secondly the learned counsel for the petitioner submitted that there is dispute of identifiability of the boundaries of the property. So far as that aspect is concerned if the plaint property 4 is exclusively taken into consideration it describes the boundary of the property which was the subject matter of the suit and it goes without saying that obviously the injunction granted by the impugned orders to the plaintiffs respondents would relate to the property which is the subject matter of the suit itself the boundary of which had been described therein and its scope cannot be enlarged to be argued as contended by the learned counsel for the petitioner it was under the pretext of description of the boundary that his property lying in khasra No. 1377 1 which is alleged is being sought to be included within it. Even if for a moment it is presumed that might be a case then too it requires a factual appreciation of evidence which has to be decided by formulation of an issue and not at the stage of grant of an injunction under Order 39 Rules 1 & 2 of the CPC. The third argument as extended by the learned counsel for the petitioner is that there is no prima facie case in favour of the plaintiffs respondents. I am not in agreement with the argument as has been extended by the learned counsel for the petitioner for the reason being that there are concurrent findings of facts which has been recorded by both the Courts below that the plaintiffs respondents stand recorded as against the khasra No. 2559 and 2560 in the revenue records and those entries still subsist in their favour and since they being the record holders the prima facie case stands established against them and the presumption of their right would flow from Section 44 of the Land Revenue Act 1901. Even otherwise also as per the principles enunciated by the Hon’ble Apex Court in a judgement as reported in 2004 SCC 488 Maharwal Khewaji TrustFaridkot Vs. Baldev Dass particularly a reference may be had to para 10 of the said judgement which has dealt with the aspect as to what is the spirit of Order 39 Rules 1 & 2 of the CPC as formulated by the legislature. Para 10 of the said judgment reads as under: “10. Be that as it may Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time therefore the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property whatever may be the condition on which the same is done. In the event of the appellant s claim being found baseless ultimately it is always open to the respondent to claim damages or in an appropriate case the court may itself award damages for the loss suffered if any in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same we think both the courts below namely the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored.” In view of the aforesaid reasoning this Court is not inclined to interfere in the writ petition. Hence the writ petition lacks merit and the same is accordingly dismissed. Sharad Kumar Sharma J.) 

Summary: “In view of the aforesaid reasoning, this Court is not inclined to interfere in the writ petition. Hence, the writ petition lacks merit and the same is accordingly dismissed.” Said Justice Sharad Kumar Sharma  of the Uttarakhand High Court in the matter of Puran Lal Bhanu alias Puran v. Ram Singh and Another [Writ Petition (M/S) No. 843 of 2021] This order was passed under the facts that the petitioner before this Court, claiming to be the owner of the land by virtue of the sale deeds executed in his favour on May 28, 1996, and December 31, 1997. If the sale deeds are considered, the property that has been disclosed to him is admittedly shown to be khasra No. 1377/1, with an area of 0.081 hectares, located in village mauja Badamawala (West Hope Town) pargana Pachhwadoon, District Dehradun, and the property covered in the second sale deed is yet again a part of the property that was lying in khasra No.1377/1.The suit accompanied with it an application, under Order 39 Rules 1 &amp; 2 of the CPC.  The learned counsel for the petitioner had placed his arguments from the following perspectives:- First and foremost, the suit was unmaintainable. His reasoning is that because the property in question has been recorded in the revenue records as a revenue land, the suit would be barred by the provisions of Section 331 of the U.P.Z.A. &amp; L.R. Act. Second, the learned counsel for the petitioner asserted that there is a dispute over the property’s boundaries. In that regard, if the plaintiff’s property is taken into account exclusively, it describes the boundary of the property, which was the subject matter of the suit, and it goes without saying that the injunction granted to the plaintiffs/respondents by the impugned orders would obviously relate to the property, which is the subject matter of the suit itself, the boundary of which has been described. Even if it is assumed for a moment that there may be a case, it still necessitates a factual appraisal of evidence, which must be decided by formulation of an issue and not at the stage of granting an injunction under Order 39 Rules 1 &amp; 2 of the CPC.  The third argument advanced by the petitioner’s learned counsel is that there is no prima facie case in favour of the plaintiffs/respondents.