DHARAMVIR Vs. MAHIPAL

JUDGEMENT

(1.) The facts are Manipal Singh's institute a declaratory lawsuit under Sec. 229-B, ZA and LR Act in the court of Assistant Collector First Class, Ghaziabad. The case set forth is that land had been let out 12 years ago on batai by defendants Jaswant Singhs. The relief to declare bhumidhar tenants in possession they pray the court for. On 19-4-1992 a motion by plaintiff that defendants have executed a sale H. Dharamvir to eject that from possession. So it is necessary that they be restrained by an order of injunction. On 30-4-1992 Sub-Divisional Officer orders that status quo be maintained and nobody be dispossessed by violence. If plaintiff is in possession he should not dispossessed till service of notice. An affidavit is in support On. 30-4-1992 an Advocate Sri Satish Chand Tyagi is appointed as Commissioner to inspect the spot and prepare a survey map. Jaswant Singh files an objection in opposition of 30-6-1992. The case is that they were tenure-holders of the land before the sale-deed dated 27-1-1992. On this date they have executed a sale-deed to defendants Dharamvir and Amar Singh. They are now in lawful possession. The claim is repudiated that they have ever let out the land to plaintiffs on batai. On the same day a written statement is filed. In pursuance of appointment of an advocate Commissioner a report is submitted. This reportedly shows that there has been alteration in the situation on the ground. On 16-11-1992 the trial court orders that advocate Commissioner shall restore the position as obtaining on the date of crucial order dated 30-4-1992. Aggrieved by this order defendant Dharamvir's revision. On 21-4-1993 .Additional Commissioner submits a reference with the recommendation to set aside the order of trial court dated 16-11-1992 ; to pass appropriate orders. The reference dockets here for a definitive decision.

(2.) Heard the counsel for the parties and perused the record.

(3.) The primary order of injunction passed by trial court on 30-4-1992 is open to serious question. This order is passed when trial judge is quite uncertain which party is in actual possession. The order states that plaintiff, if he is in possession, then status quo is apt to be maintained. Who is finally to decide which party is in possession? The court cannot delegate its judicial responsibility to others. On this ground subsequent orientation too suffers serious vitiation. When at the first stage the court is unable to decide whether plaintiff is in possession or not no case for issue of injunction is made out under Sec. 229-D, ZA Act. This remedy is open only when there is a clear case rested on prima facie claim of possession and balance of convenience. So is not here. In his pleading plaintiff says that defendant has given him the land on batai 12 years ago. Defendant has repudiated this claim. The matter is not dear. In such circumstance it is inappropriate to issue an order of injunction.