MOHD JUBAIR Vs. DISTRICT JUDGE JAUNPUR

JUDGEMENT

(1.) The petitioner as plaintiff instituted Original Suit No. 1688 of 1997 in the Court of Civil Judge. (Junior Division). Jaunpur. In connection with the said suit, he filed an application for temporary injunction. By an order dated 13.11.1997, ad interim injunction was granted. Subsequently, by an order dated 4.2.1998 the application for temporary injunction was rejected on contest. Misc. Appeal No. 15 of 1998 was preferred against the said order. By an order dated 31.3.1998 passed by the learned District Judge, the appeal was dismissed and the order passed by the learned Civil Judge (Junior Division) was upheld. These orders have been challenged in this petition.

(2.) Mr. Govind Krishna, learned counsel for the petitioner, contends that the appeal court had thoroughly on misconception of facts come to the finding that no prima facie case was made out. It has come to the finding that plot No. 38 is recorded as patri in the name of the plaintiff and Khasra for the year 1404 Fasli also stands in the name of the plaintiff on misconception notion that plot No. 38/66 was not recorded as pond but as patri and then the said land was shown to have been used by the plaintiff in possession for cultivation of crops. The appeal court has not come to the finding as to the question of the pond which is in the possession of the plaintiff and therefore the entire order is perverse. According to him. on similar grounds the order passed by the learned Civil Judge is also perverse. Inasmuch as the learned Civil Judge (Junior Division) has also not correctly ascertained the facts and had proceeded on misconception of the facts. The findings of fact appear to be perverse on the basis of the materials placed before the Courts. According to him, the defendant had been claiming right, title and interest by virtue of a lease deed executed by the then Zamindar on 9.2.1952 in favour of the defendant, which according to him is void by reason of coming into force of U. P. Zamindari Abolition and Land Reforms Act. Therefore, the findings of the Courts below being perverse, the orders impugned cannot be sustained and are to be set aside.

(3.) Mr. J. S, Tomar, learned counsel for opposite party Nos. 3 to 7, on the other hand, contends that both the Courts had come to a finding that the plaintiff-petitioner is in possession of the land other than that is used as a pond. From the records it is apparent as has been discussed by the Courts below that the lands other than the pond are in possession of the plaintiff-petitioner, which has rightly been found by the Courts below. But so far as the land which is pond that has been found to be in possession of the defendants. He has also pointed out that there were several suits between the defendants -and ancestors of the plaintiff in respect of the said pond, in which rights of the defendants have been confirmed including a decree arrived at through compromise between the parties. Therefore, according to him, there is no infirmity in the impugned orders.