MORSHIRI Vs. MITHILESH

JUDGEMENT

(1.) This is the defendant's Second Appeal questioning the validity of the judgment dated 05.02.2015 passed by the Additional District Judge in Civil Appeal No. 162/2013 'Smt. Mithilesh vs. Smt. Morshiri'. By virtue of the judgment impugned in the Second Appeal the First Appeal of the respondent was allowed and consequently, the Trial Court's judgment dated 18.09.2013 dismissing the suit of plaintiff being Suit No. 976/2001 and 274/2000 was dismissed. When the Second Appeal was preferred, this Court while admitting the Appeal on 10.03.2015 had passed the following interim order:

(2.) By virtue of the interim order dated 10.03.2015 apart from staying the effect and operation of the Appellate Court's judgment dated 05.02015 the coordinate Bench of this Court has also directed the parties to maintain status quo regards property in dispute and will not create third party interest in any manner during the pendency of the Second Appeal. The respondent herein had filed an application under Order 39 Rule 2A alleging therein that the appellants have derogated the order dated 10.03.2015 passed in their Second Appeal granting an interim order in their favour and by violating the same they have taken over possession of the property in question on 19.02016. In support of his contention for invoking Order 39 Rule 2A, applicant respondent had filed some photographs, but this Court is afraid that those photographs cannot be considered as not being proved as per law of evidence, nor any steps in that regard has been taken by respondent to prove them.

(3.) A pleading to the said effect has been raised by the applicant to the application under Order 39 Rule 2A in paragraph 9 of the application under Order 39 Rule 2A that possession has been taken from them, despite knowledge of order. In paragraph 10 of the application he submits that the incident which occurred on 02.12.2016 by virtue of which the respondents alleged that the possession was taken over, they had approached to the police and met S.H.O. and endeavoured to lodge a complaint/FIR, complaining that the possession has been taken over by the appellants by violating the order dated 10.02015. It is an admitted case that no FIR has been lodged of the incident dated 02.12.2016. Even otherwise also, the fact of taking over of possession, which has been pleaded by the respondent in their application under Order 39 Rule 2A, is not supported by any independent document to show that actually the incident of 02.12.2016 did occur and the respondent/applicant had taken a recourse under law for redressal of their grievance against the same or any steps permissible under law was taken to get possession restored. Even otherwise also, if the possession has been taken in violation of the order dated 10.02015, it was quite obvious that if the possession is taken he ought to have moved an appropriate application in the Second Appeal also for restoration of possession, which otherwise has been taken in violation of the interim order dated 10.02015. There is nothing on record to show that the respondent had made any effort praying for the Appellate Court for restoration of the possession taken on 02.12.2016.