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Gomti Prasad v. Kalika Prasad And Others - WRIT - C No. 7049 of 2006 [2006] RD-AH 2695 (6 February 2006)


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Court No. 23

Civil Misc. Writ Petition No. 7049 of 2006

Gomti Prasad Vs. Kalika Prasad & others

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the petitioner.

This petition under Article 226 of Constitution of India has been directed against the order dated 19.12.2005 passed by the Additional District Judge in Misc. Civil Appeal No. 217 of 1994.

The appellate court has allowed the plaintiffs' appeal in the matter of a prayer for temporary injunction under Order XXXIX, Rule 1 C.P.C. The plaintiffs filed a suit for permanent injunction regarding a piece of land claimed to be their property in the form of Abadi over which they are continuing in possession. The defendant petitioner was trying to interfere in the same and he should, therefore, be restrained temporarily during the pendency of the suit. That application for temporary injunction was contested and counter affidavit was filed stating that the property in question is in petitioner's possession and is a parti land of Gaon Sabha. The petitioner further contended that the village in which the land in question is situated, has been notified under consolidation operation under Section 4 (2) of U.P. Consolidation of Holdings Act, and as such the suit for permanent injunction was not maintainable.

The trial court, taking this view of the matter that since the village has come in consolidation operation by the alleged notification under Section 4 (2) of U.P. Consolidation of Holdings Act, did not find prima facie case available to the plaintiffs and their prayer for temporary injunction was dismissed.

The appellate court has taken different view in the matter and found that the suit is that for Abadi land over which the consolidation courts did not have any jurisdiction and as such, the suit was not barred under Section 49 of U.P. Consolidation of Holdings Act. On the other hand, the lower appellate court has found that since the petitioner defendant himself admitted this property in question to be a parti land of Gaon Sabha, the directions were given by it for the parties to maintain status quo in the disputed land.

From the aforesaid facts and circumstances, it is evident that the appellate court has not committed any procedural or otherwise illegality in passing the order impugned directing both the parties to maintain status quo in the land in question. The plaintiffs, claim themselves to be the owner of this Abadi land as also the defendant has set up his claim of possession over the same admitting it to be a property belonging to Gaon Sabha. Therefore, without looking into the details about respective claim of possession over the property set up by the parties, a simple order of maintenance of  status quo  over the same for the parties was passed. This order is not at all questionable and the petition does not appear to have any force. It is accordingly dismissed.




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