AKBAR ALI Vs. DISTRICT JUDGE

JUDGEMENT

(1.) Heard Shri Shafiq Mirza, learned counsel for the petitioner and Shri Vinod Kumar Singh, learned counsel for the private respondents (Caveator). Counter-affidavit was filed by Shri Vinod Kumar Singh, on behalf of Caveator (private respondents). Shri Shafiq Mirza, advocate submitted that the writ petition may be heard and he does not intend to file rejoinder-affidavit. In view of above on 16.2.2004 after hearing parties counsel, the order was reserved in the present case. Now I proceed to decide on merit. Petitioner had filed a regular suit No. 189 of 2002 against the defendant respondent Nos. 2 to 7 for permanent injunction with the prayer that respondents may be restrained from interfering with the petitioner possession of the premises in question. According to petitioner the property in question was orally gifted to his wife Smt. Saeedul by one Hazi Peer Baksh which includes, a shop, on 27.9.1985, On the other hand, the case of the respondent Nos. 2 to 7 is that late Hazi Peer Baksh had by an oral gift dated 25.10.1980 transferred the property in question in their favour.

(2.) It has been fairly admitted by Shri Shafiq Mirza learned counsel for the petitioner that claim of both the parties is based on oral gift. He further submits that plaintiffs are the sons of the brother of the wife of original owner whereas defendants are brother and brother's son of the original owner. Shri Shafiq Mirza submits that the trial court had passed an order of temporary injunction directing the parties to maintain status quo, which was just and fair order. Since the plaintiffs are in possession of land in question, he assailed the order of appellate court submitted that defendant are not in the possession of the land in suit and the order passed by appellate court amounts to give a free hand to the defendant to raise pakka construction which will change the nature of suit. The appellate court had interfered without recording any reason. Shri Shafiq Mirza has relied upon the judgment of this Court in Ram Kalap v. IVth Additional District Judge, Gorakhpur and Anr., 1990 RD 15 ; Satya Prakash and Anr. v. Ist Additional District Judge, Etah, 2002 (2) AWC 1368 : AIR 2002 All 198, and a case of Apex Court in Wander Ltd. v. Antox India Pvt. Ltd., 1991 (9) LCD 290.

(3.) On the other hand, Shri V. K. Singh, learned counsel for the private respondents submits that the defendant respondents are in possession of land in question and they are running a hotel in the shop existing in the premises in question. He submits that the house in question is in dilapilated condition, having a shop No. 263C recorded in the register of Municipality. He further submits that the defendant is in possession of house as well as shop in question and on account of order of status quo passed by the trial court the plaintiff petitioners were interfering with day to day hotel business of the defendant, running in the shop.