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Malak v. Dr. Bhim Rav Ambedkar Shikshan Sansthan Harijan Prathmik Vid - WRIT - C No. 8161 of 2006 [2006] RD-AH 3100 (10 February 2006)


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Court No. 23

Civil Misc. Writ Petition No. 8161 of 2006

Malak Vs. Dr. Bhimrav Ambedkar Shikshan Sansthan, Mau & others

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the petitioner and learned standing counsel.

The appellate court's order dated 5.9.2005 is under challenge in this petition whereby the court below has allowed the application of temporary injunction and has passed the order directing the petitioner for not interfering over the land over which Dr. Bhimrav Ambedkar Shikshan Sansthan is situated.

Learned counsel for the petitioner contends that the plot in suit No. 383 area 0.608 hectare is a 'banjar' land owned by Gaon Samaj, Out of which an area of 0.041 hectare has been allotted in favour of the petitioner and, therefore, patta given by Gaon Samaj has been confirmed by the Assistant Collector. The plaintiff respondent No. 1 has absolutely no right to make any claim in that land and accordingly it does not possess any prima facie case for grant of temporary injunction in its favour.

A perusal of the impugned order of appellate court shows that from the evidence available on record, it was found that the aforesaid Prathmik Vidyalaya is located in plot No. 383 and it has its building, boundary wall and play ground etc. The school was also found to be entered in the said plot in revenue record of khatauni from 1405 to 1410 fasli, though, subsequently in suit under Section 229 B of U.P. Z.A. & L.R. Act, the court concerned has given certain findings adverse to the plaintiff respondents and the entry has been deleted. The question, which had been raised before the appellate court was that the school is continuing in possession over the land of the said plot  and obviously the same is not to be disturbed till the final decision in the matter is actually given by the court. There is no dispute before this court also that the school is located in a portion of that plot No. 383. Whether this possession of the school over the land also includes the portion of land area 0.041 hectare, which has been allotted to the petitioner defendant is a substantive question to be decided, not at this stage but at the stage of final disposal of the suit. Therefore, to give a liberty to the defendant petitioner to encroach upon the land of school obviously would be unreasonable and unjustifiable. In the aforesaid view of the matter only it so appears that the appellate court has granted the temporary injunction, as prayed by the respondent No. 1. The matter about  confirmation of patta, as granted in favour of the defendant petitioner, is also still sub-judice before the concerned authority in revision. Thus, even if the patta has been executed in favour of the petitioner over a portion of land presently possessed by the school, temporary injunction granted in-spite thereof can be definitely justifiable. Thus, it is found that till the period the suit is disposed of, it is wholly justifiable if the petitioner and the other defendants have been restrained from interfering into the possession of respondent No. 1 over the land in which the school building and boundary wall is situated. The defendants have been rightly restrained by the appellate court. In this view of the matter the order impugned does not warrant any interference in this petition.

The petition having no force is hereby dismissed.




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