RAHMULLAHS Vs. DISTRICT JUDGE

JUDGEMENT

(1.) The petitioner had filed Original Suit No. 18 of 1998 against the opposite parties for permanent injunction restraining them from raising any construction by taking forcible possession over the property after evicting the plaintiffs forcibly from plot No. 142 measuring 0-6-8 and plot No. 143 measuring 0-1-12 described at the foot of the plaint in respect of the suit property described therein. In connection with the said suit, the plaintiff had filed an application under Order XXXIX, Rule 1 of the Code of Civil Procedure for temporary and ad interim injunction. By an order dated 21.3.1998, learned Civil Judge, (S.D.). Siddharth Nagar had rejected the application for temporary injunction. Misc. Civil Appeal No. 18 of 1998 was preferred by the plaintiff. By an order dated 2.5.1998, the said appeal was dismissed. It is this order which has since been challenged in this petition under Article 227 of the Constitution of India.

(2.) Smt. Suneeta Tripathi, holding brief of Mr. Tripathi B. G. Bhai, learned counsel for the petitioner, submits that both the trial court as well as the appellate court though had come to a finding that so far as plot No. 143 is concerned, the plaintiff and defendant were Joint owners but simply on the basis of its finding in respect of plot No. 142 that the plaintiff was unable to show that he had any right in respect of the said property, the injunction application has been refused in respect of the entire property which included both the plot Nos. 142 and 143. According to Smt. Tripathi, both the Courts below had decided the issues in the suit itself on the basis of the affidavits though the persons affirming the affidavits were not subjected to cross-examination and therefore veracity of such affidavits could not be tested. She further contends that in effect in its order the learned lower appellate court had pre-determined the Issues which could be decided only on the basis of evidence entering into intricate question of law and fact involved in the determination of the case. According to her, it is only the prima facie case which is to be found out. It is not necessary that in order to obtain an injunction, full proof case is required to be made out. She had taken me through the Impugned orders and pointed out the portions on which she relied upon to support her contention.

(3.) Mr. Anoop Kumar Srivastava, learned counsel for the opposite party, on the other hand contends that the plaintiff had been unable to make out a prima facie case on the basis of the rights the plaintiff had claimed. There was nothing to show that the plaintiff had any lota of interest in respect of plot No. 142. It might be on the record to show that the plaintiff was a joint owner in respect of plot No. 143 but at the same time there was nothing to show that the plaintiffs were ever in possession in respect of plot No. 143. On the other hand, the defendant had been in possession on both the plots exclusively right before the U. P. Zamindari Abolition and Land Reforms Act, 1950 came into operation. According to him by reason of the impact of the said Act, ownership of the defendant had conclusively matured to the exclusion of the plaintiff. Therefore, there is no scope for the plaintiff either to claim any interest in respect of the said plot or possession in respect thereof. Since the plaintiff had been unable to show any interest or possession in respect of both the plots, both the Courts below were justified in arriving at the conclusion that the plaintiff had been unable to make out a prima facie case. He also contends that both the Courts have come to a concurrent finding of fact and the same being a finding of fact, sitting in revision this Court cannot enter into such finding of fact unless the facts are perverse. He had led me through the said two orders and had pointed out that there is no perversity in any of the impugned orders. He also contends that Smt. Tripathi has been unable to point out any perversity in any of the said orders. He further contends that the Courts below had not pre-determined the Issues. The entire endeavour in scanning the material was only for the purpose of finding out a prima facie case. There is nothing to indicate that the Courts below had predetermined any issue. Thus, the orders impugned according to him are justified and cannot be interfered with.