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KULDEEP SINGH SAREEN versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Kuldeep Singh Sareen v. State Of U.P. & Others - WRIT - C No. 8752 of 2005 [2007] RD-AH 2851 (21 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

   RESERVED

CIVIL MISC. WRIT PETITION NO.8752 OF 2005

Kuldeep Singh Sareen    

            Vs.    

State of U.P. and others

Connected With

CIVIL MISC. WRIT PETITION NO.3731 OF 1997

The Bhartiya Housing Sahkari Samiti Ltd. Varanasi

             Vs.

Smt. Pushpa Kshanna and others

                         -----------------------------------  

Hon'ble Tarun Agarwala, J.

The Bhartiya Housing Sahkari Samiti Ltd. Varanasi purchased  a piece of  land vide a sale deed dated 16.11.1970 from one Smt. Rama Jain. The Society developed the land and submitted a lay out plan before the Varanasi Development Authority which was sanctioned in which  an 80 feet wide road on the South was shown. The society, on the basis of the sanctioned plan, sold various plots to its members. Plot no.1 was sold to Smt. Pushpa Khanna, vide a sale-deed dated 19.7.1971 and plot no.13 was sold  to Smt. Priyamvada Tiwari by a sale deed dated 26.6.1971. It is alleged that the plot no.13 had an area of 4000 sq. feet. The boundary shown in the sale deed indicated that on the South there was an 80 feet wide government road.

It transpires that the society submitted a revised lay out plan to the Varanasi Development Authority which is alleged to have been sanctioned in the year 1984, in which, the road on the South was shown as 60 feet wide. The society claimed, that the development authority had released 10 feet  of land in their favour. On the basis of the revised plan, the society started pestering Smt. Pushpa Khanna and Smt. Priyamvada Tiwari to part with the excess land measuring 10 feet wide which was in their possession and, when they refused to do so, the society filed Original Suit No.173 of 1995 alleging that upon the release of the land by the development authority, the society had become the owner of the land and that the defendants are threatening to take possession of the said land. Consequently, the society prayed that the defendants be injuncted not to take forcible possession of the land in question. Alongwith the suit, an application for temporary injunction was also filed. The trial court granted a temporary injunction by an order dated 20.4.1996 restraining the defendants not to raise any construction on the disputed portion of the land and also restrained them from changing the nature of the land. The defendants Smt. Priyamvada Tiwari and Smt. Pushpa Khanna filed  a Misc. Appeal which was allowed and  the injunction  granted by the trial court was set aside. The lower appellate court found  that the defendants were in physical possession of the land in question since the execution of the sale deed and, in that view of the manner, vacated the injunction granted by the trial court. The society filed Civil Misc. Writ petition No.3731 of 1997 in which no notices were issued to the defendants and the writ petition remained pending for admission for the last nine years.

After the appeal was allowed on 8.11.1996, Smt. Priyamvada Tiwari sold 50% of the  area of plot no.13 towards the South to Smt. Madhu Datta vide sale-deed dated 1.5.1998 and handed over the possession to her. The boundaries in the sale deed indicated that on the South  there was a government road. On 28.7.2000, Smt. Priyamvada Tiwari  died leaving behind respondent nos.10,11 and 12 as her heirs. It transpires, that the heirs of Smt. Priyamvada executed two documents on the same date i.e. 11.8.2004. By the first document, the heirs executed a sale-deed in favour of Smt. Mala Sareen, wife of the present petitioner  with regard to the balance  area of plot No.13, i.e. the north portion. By another document, the heirs executed an agreement, surrendering the alleged disputed portion of land, in favour of the society, namely, the land sandwiched between the land of Madhu Dutta and the government road.  By a third document of the same date, the society executed a sale-deed in favour of the plaintiff with regard to the disputed portion of the land. The plaintiff, thereafter filed Suit No.96 of 2005 for a permanent injunction restraining the defendant from dispossessing the plaintiff-petitioner from the disputed portion of the land. The petitioner claimed that the heirs of Smt. Priyamvada Tiwari were in possession of the land. They surrendered the land in favour of the society and that the society in turn executed a sale-deed in their favour and that the plaintiff was now in possession of the land and that the defendants had no right, title or possession over the land in question.

The trial court after considering the entire facts and circumstances of the case found that a prima-facie case, balance of convenience and irreparable loss existed in favour of the plaintiff and therefore, granted an interim injunction vide an order dated 2.2.2005, restraining the defendants from dispossessing the plaintiff or from raising any construction over the land in dispute.

Aggrieved by the injunction order, the defendants filed the appeal which was allowed by a judgment dated 10.2.2005. The plaintiff ,being aggrieved by the said order, has filed the present writ petition.

The trial court found that the society was the owner and that Smt. Priyamvada Tiwari was not the owner and that the heirs had surrendered the land in favour of the society and that the society in turn had executed a sale-deed in favour of the plaintiff. The trial court was impressed by the three documents dated 11.8.2004. The appellate court while vacating the injunction, found that the society was not in possession of the land in question and that the  agreement of surrender of the land by the heirs of Smt.Priyamvada Tiwari appeared to be a sham and a suspicious document. The appellate court, further found, that there was no document to indicate that the government had released the land left for the road widening in favour of the society.

Heard Sri Ravikant, the learned senior counsel assisted by Sri B.K.Srivastava for the petitioner, Sri W.H.Khan and Sri Akhileshwar Singh, the learned counsel appearing for respondent nos. 3 to 9 in the present writ petition and Sri Ashok Khare, the learned senior counsel assisted by Sri S.D. Shukla, the learned counsel for the respondent nos. 1 and 2 in the connected writ petition.

Sri Ravikant, the learned senior counsel for the petitioner submitted that the approach adopted by the appellate court was patently  erroneous. The appellate court had committed an error in holding that the injunction could only be granted to a party only if he succeeded finally in the suit. The learned counsel submitted that the court was required to be satisfied that a prima-facie case existed and was not required to consider whether the plaintiff would eventually succeed in the suit or not. The learned counsel for the petitioner further submitted that the disputed portion of the land was released by the Varanasi Development Authority, Varanasi and that the defendants, in no manner, could claim ownership of the land in question. Since the disputed portion of the land, kept for the road widening, was  now not being done by the  Varanasi Development Authority, Varanasi, the land in question had now reverted back to its rightful owner, namely, the society who in turn, had executed the sale-deed in favour of the plaintiff. The lower appellate court further committed a manifest error  in holding that the document regarding the surrender of the land by the heirs of Smt. Priyamvada Tiwari appeared to be a sham or fictitious documents.

The learned counsel for the respondents submitted that there is no land between the boundary wall of the defendants and that there is no document to prove that the  Varanasi Development Authority, Varanasi had released the disputed portion of land in favour of the plaintiff. The learned counsel for the respondents further submitted that the defendants are in actual and physical possession of the land in question and therefore, no prima-facie case was made out in favour of the plaintiff nor balance of convenience or irreparable loss existed. Upon considering the rival submissions of the parties, this Court is of the opinion that the petitioner is not entitled for any relief.

Admittedly, the original plan, which was sanctioned, showed an 80 feet wide road on the South. The revised plan showed that the width of the road on South was reduced to 60 feet. On this basis, the society and thereafter, the present plaintiff is claiming that the disputed portion of land which was left for the road widening has now reverted back to the society and since, the society was the true owner, the society had validly executed the sale-deed in favour of the plaintiff. The fact whether there existed an open piece of land between the boundary of the defendants and the existing road is a question of fact which can only be adjudicated after the evidence is led and a survey is made on the spot. At the present moment, there is nothing to indicate that there existed any open piece of land between the boundary of the defendants and the road on the South. The question whether the area in possession  of the defendant is more than 2000 Sq. feet is also a question of fact which is required to be adjudicated  after the evidence is led. At the present moment there is nothing to indicate that the area in favour of the defendants is more than 2000 sq. feet. Another aspect which is required to be adjudicated by the trial court is that if there is a conflict between the total area of the land given to Smt. Priyamvada Tiwari and the boundary mentioned in the sale deed whether the boundary would prevail or the area would prevail  would have to be dealt with by the trial court. At the moment, this Court is not in a position to dwell into this aspect of the matter. Further, the contention of the plaintiff that 10 feet of open land  left for road widening was released in favour of the plaintiff is not supported by any documentary proof. There is no document on record to prove that the land was released in favour of the society, except for the sanctioned plan. In my opinion, prima-facie, the mere fact that the revised sanctioned plan indicates a 60 feet wide road on the South, does not prove that the remaining 10 feet land was released by the Varanasi Development Authority, Varanasi in favour of the society or that the disputed portion of the land automatically reverted back to the society. Further, the question that after the alleged reversion, if any, the society became the owner of the land is also a question of fact which is required to be adjudicated. At this stage, it cannot be said that the society is the owner of the disputed land in question and therefore, it is doubtful whether the society could infact, execute a sale deed of this portion of the land in favour of the plaintiff. In the suit filed by the society, a finding has been given by the lower appellate court that Smt. Priyamvada Tiwari and Smt. Pushpa Khanna were in actual and physical possession of the land in question. Smt. Priyamvada Tiwari sold  the South portion of the land in favour of the present defendants. The lower appellate court was justified in holding that the heirs of Smt. Priyamvada Tiwari were not in actual and physical possession of the disputed portion of the land and could not have surrendered the land in favour of the society. The lower appellate court was justified in concluding that the surrender agreement appeared to be a sham transaction. Further, this Court is of the opinion that the findings given by the lower appellate court in the suit filed by the society was also binding  upon the present plaintiff, inasmuch as, the plaintiff had stepped into the shoes of the society by the alleged sale-deed executed by the society in favour of the plaintiff.

In view of the  aforesaid and in view of the finding that the defendants are in actual and physical possession of the land question, the question of granting an injunction  in favour of the plaintiff does not arise.  In view of the aforesaid, no prima-facie case exists in favour of the plaintiff. Both the writ petitions are dismissed. In the circumstances, the parties shall bear their own costs.

Dt. Feb.21, 2007

Ak/


Copyright

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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