KHEM SINGH RAWAT Vs. MUKESH KUMAR AND OTHERS

JUDGEMENT

(1.) Present writ petition has been filed challenging the order dated 03.05.2018 passed by learned 3rd Additional Civil Judge (Sr. Div.) Dehradun in O.S. No. 446 of 2015 Gopal Singh Rawat (deceased) vs. Mukesh Kumar and others whereby application no. 38C filed by the defendants/ respondents has been allowed.

(2.) Brief facts, of the case, are that plaintiff/petitioner filed Original Suit No. 446 of 2015 for prohibitory injunction against respondents/defendants stating therein that plaintiff/petitioner is the owner of the land bearing Khasra No. 77 admeasuring 11 Biswas, 1 Biswani situated at village Adhoiwala, District Dehradun, which he purchased vide registered sale deed dated 28.03.1968. Petitioner also purchased land bearing Khasra no. 78/1 measuring 0.23 acre (new khasra no. 149 ka) which was adjacent to the property purchased by the petitioner vide sale deed dated 28.03.1968. Petitioner has constructed shops in front of the said property and has also raised residential construction. It is also stated that respondents/defendants were trying to interfere in the peaceful possession of the petitioner/plaintiff on the basis of alleged sale deed dated 23.03.2006 executed in their favour. It is also stated that defendant no. 3 had applied for mutation but his name has not been recorded yet.

(3.) Respondents/Defendants filed their written statement stating therein that proceedings under Section 41 of U.P. Land Revenue Act 1901 (hereinafter referred as the Act) has been initiated by the defendants before the Assistant Collector 1st Class, Dehradun in which Tehsildar was directed to submit its report, which is pending consideration. It is further contended that dispute between the parties pertains to the boundary wall and plaintiff has not disclosed the boundary in the plaint, and property in dispute is vague. An application, paper no. 39C, had been filed by the respondents/defendants to appoint an Advocate Commissioner so he may inspect the property and submit a report in regard to the location of the property. Plaintiff/petitioner filed his objection, paper no. 39C, to the application, paper no. 38C, stating therein that an application under section 41 of the Act has already been filed by the defendants, therefore this Court has got no jurisdiction to hear and decide the application.