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Smt. Dhiraji v. Board Of Revenue, U.P. At Allahabad & Others - WRIT - B No. 1124 of 1997 [2005] RD-AH 6613 (29 November 2005)


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                                                                                                Court No.5.

Civil Misc. Writ Petition No. 1124 of 1997.

Smt. Dhiraji                        Versus.     The Board of Revenue, U.P State of U.P. and others.

Hon'ble Janardan Sahai, J.

            A suit under Section 229-B of the U.P. Zamindari Abolition & Land Reforms Act was filed by the petitioner. The petitioner's case is that Deo Narain was the tenureholder of the disputed land and that the petitioner has succeeded to his property on the basis of a will executed by him. The case of respondents is that Deo Narain had executed a sale deed in their favour. An application for temporary injunction was filed by the petitioner. The trial court passed an interim order on 2.4.1987 directing the parties to maintain status quo. Against that order a revision was filed by the respondents and a reference was made to the Board of Revenue to allow the revision. The Board of Revenue by its order dated 24.12.1996 allowed the revision. The finding recorded by the Board of Revenue is that the name of defendants was recorded on the basis of a sale deed executed by Deo Narain and the sale deed has not been cancelled by the competent authority. It has also been found that the petitioner is not entitled to any injunction because his possession is not established. The order of the Board of Revenue has been challenged in this writ petition.

Counter and rejoinder affidavits have been exchanged in this case and the writ petition is therefore being disposed of on the admission stage itself with the consent of the parties counsel.

On 20.1.1997 an interim was passed in the writ petition restraining respondents from changing the nature of the land by digging mud (earth) for the purpose of brick-kiln or any other purpose in respect of plot no. 52.  The interim order was extended for some time but thereafter it appears that no order of extension or otherwise was passed.

The view taken by the Board of Revenue that as the petitioner is not in possession he cannot at all be granted interim injunction does not appear to be an accurate statement of law in regard to injunctions for preserving the property. No doubt if a finding about the possession is recorded against the plaintiff he may not be entitled to an injunction to protect his possession but an interim order for preserving the property i.e. for restraining defendant from changing the nature of the land can certainly be passed.  Reliance has been placed by the Board of Revenue upon the decision of the Apex Court in Bruce Vs. Silva Raj and others [1987 (Supp.) Supreme Court cases 161]. In that case the Apex Court held that if a party is not in possession he is not entitled to any injunction In that case the question of grant of a limited injunction such as has been granted by this court by way of interim order restraining defendant from changing the nature of the land by digging mud was not involved for consideration. The cited decision is therefore distinguishable

As regards the sale deed said to have been executed in favour of respondents, the submission of the counsel for the petitioner is that in the plaint itself the plaintiff had stated that the sale deed is a forgery and the relief for the setting aside of such a sale deed was not required to be taken.  It is well settled that if a deed is void it is not necessary to get it cancelled. It is for the trial court to go into this question on merits if it is pressed before it.

The writ petition has been pending since the year 1997 and the suit is said to have been pending since the year 1986. In the circumstance it is appropriate that the suit itself may be disposed of expeditiously and if possible within a period of eight months from the date a certified copy of this order is filed by either of the parties before the trial court.  In the facts and circumstances the parties shall maintain status quo as of today in respect of the nature of the disputed plot and neither party shall dig the soil from the disputed nor will alienate the property till the disposal of the suit by trial court. The trial court shall try to dispose of the suit within a period of eight months as directed above.

With the aforesaid direction, this writ petition is disposed of.

Dt. 29.11.2005



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