GAINA SINGH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) UNDISPUTEDLY , petitioner earlier filed civil suit being O.S. No. 1 of 2004 (Gaina Singh Negi Vs. Surendra Singh Padiyar) for permanent prohibitory injunction restraining the defendant (respondent no. 3 herein) in making any interference in possession of the plaintiff / petitioner over the property, in question, viz. plot no. BTX -I. It was specifically stated in paragraph 5 of the plaint that Director, Rehabilitation (respondent no. 2 herein) had cancelled the order of allotment of the property, in question, issued in favour of the plaintiff / petitioner and cancellation order was never served on the plaintiff / petitioner, herein. It was further stated in paragraph 5 of the plaint that after the cancellation of allotment of property, in question, in favour of petitioner, the same was allotted in favour of defendant / respondent no. 3, herein.

(2.) LEARNED Civil Judge (JD), Tehri Garhwal vide judgment & decree dated 01.02.2005 was pleased to dismiss the suit filed by the plaintiff/ petitioner saying petitioner ought to have challenged the order of cancellation of allotment as well as subsequent allotment order made in favour of the defendant / respondent no. 3, herein, too, instead of seeking only relief of permanent prohibitory injunction. It was further observed by the learned Civil Judge that since order of cancellation of allotment in favour of the petitioner and subsequent, allotment in favour of the defendant / respondent no. 3 were not challenged, therefore, same had attained finality, therefore, plaintiff had absolutely no right over the property, in question, thus, no injunction in favour of plaintiff/ petitioner could be granted.

(3.) IN view of the statement made by the plaintiff / petitioner in paragraph 5 of the plaint filed by the plaintiff, it was within the knowledge of the plaintiff / petitioner that prior to filing of the suit, allotment made in favour of the petitioner was cancelled and it was subsequently allotted to respondent no. 3. Therefore, plaintiff / petitioner ought to have challenged the order dated 21.01.2003 whereby allotment in his favour was cancelled as well as our dated 23.08.2013 whereby same was subsequently allotted to the respondent no. 3 in the suit. Section 11 and Order 2 Rule 2 of CPC reads as under: