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PREM CHAND DUBEY versus DISTRICT JUDGE/SPECIAL JUDGED (D.D.A.) MAINPURI AND OTHERS

High Court of Judicature at Allahabad

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Prem Chand Dubey v. District Judge/Special Judged (D.D.A.) Mainpuri And Others - WRIT - C No. 11143 of 2006 [2007] RD-AH 11719 (11 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.6

Civil Misc. Writ Petition No. 11143 of 2006

Prem Chand Dubey      ... ... ... ......... Petitioner

Versus

District Judge/Special Judge

(D.D.A.) Mainpuri and others   ......... ......... .........   .....   Respondents  

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Hon'ble Janardan Sahai, J

A suit for declaration that the will dated 18.11.1981 registered on 5.12.1981 said to have been executed by Brindavan @ Purushottam Narain is void and ineffective and for an injunction restraining the defendants from interfering with the possession of the plaintiff-petitioner was filed. An application for temporary injunction was also filed by the plaintiff-petitioner. The trial court dismissed the application. An appeal against that order was filed by the petitioner which has been dismissed by the Additional District Judge, Mainpuri. The case of the petitioner is that Savitri Devi the owner of the properties in dispute had adopted Bankey Behari who was renamed after adoption as Purushottam Narain; that a will dated 15.2.1983 was executed by Bankey Behari @ Maharaj Purshottam Narain in favour of the plaintiff-petitioner who succeeded to the property in dispute on the death of Purushottam Narain on 14.6.1991.  The case of the defendants is that Bankey Behari @ Maharaj Purshottam Narain died on 13.4.1915 and therefore the will relied upon by the plaintiff is a forged one.  A pedigree has been furnished by defendants which has been quoted in the judgement of the appellate court. According to the defendants on the death of Savitri Devi in 1917 the properties passed on to Laxmi Narain, brother's son of Saligram being the nearest heir, that Laxmi Narain executed a dastbardari in favour of Brindavan on 16.5.1919 and tamliknama dated 9.9.1921 and Brindavan was also renamed as Purushottam Narain and this Purushottam Narain executed a will dated 18.11.1981 in favour of the defendants  who have succeeded on the death of this Purushottam Narain The defendants filed several papers to establish that  Bankey Behari @ Maharaj Purshottam Narain died in the year 1915.  One of the papers filed by them is the judgement  dated 25.8.1969 in which the court found that Bankey Behari @ Maharaj Purshottam Narain had died in the year 1915 and the appeal against that order was also dismissed.  Copy of the appellate order was also filed in the court below.  The petitioner relied upon a certificate of the Pradhan to prove the death of Bankey Behari @ Purushottam Narain in 1991. This paper however was not found reliable but a procured one. Prima facie for the purpose of grant of interim injunction the court below did not rely upon the will set up  by the plaintiff and regarding the question of possession also a finding has been recorded by the appellate court that the defendants had been in possession and the plaintiff was unable to establish his possession. Reliance was placed by the appellate court upon the  fact that the names of the defendants are  recorded in the revenue record.  In view of these findings, the appeal was dismissed. The findings are findings of fact and I see no reason to interfere.

Sri Rajiv Mishra learned counsel for the petitioner submitted that there was a serious title dispute involved in this case  and the courts below ought to have granted an order of status quo. He also placed reliance upon the decision in U.P. Power Corporation  Ltd through its Chairman Lucknow Vs. Zakir Hasan and others [2005 (61) ALR 14]. In that case  the trial court  had granted an interim injunction restraining defendant from causing interference in the construction of boundary wall and other constructions on the disputed land and from demolishing the boundary wall. On an appeal filed by the defendant this court held that the proper course in such a case for the trial court was to  pass such an injunction as may be non-injurious to both the parties and the parties could be directed to maintain status quo on the spot with the further direction not to demolish the constructions existing on the disputed land.  The decision relied upon by Sri Rajiv Mishra has no application to the facts of the present case.   In the case cited a temporary injunction was granted by the trial court and this court found that it was not justified in the terms it was passed and a different injunction ought to have been granted. The only basis of the title of the plaintiff in the present case was the will executed by Bankey Behari @ Maharaj Purshottam Narain. Otherwise the plaintiff does not claim  that he  belongs to the family of Mahraj Mool  Chandra.  As the plaintiff is a total stranger in the family of Maharaj Mool Chandra  and the will was prima facie found not proved and the plaintiffs possession was also not found proved the courts below have refused to grant injunction. In the circumstances the courts below have refused to grant a temporary injunction. The order does not suffer from any illegality, which may call for interference.  Dismissed.

Dt. 11.7.2007

sn


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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