BHAGAUTI PRASAD Vs. GAYA PRASAD

JUDGEMENT

(1.) Sri U.P. Singh, the learned Additional Commissioner (Admi.) Varanasi Division, Varanasi vide his judgement and order dated 20.7.1996 has made this reference passed in revision No. 61 of 1991 District Bhadohi, Bhagauti Prasad Vs. Gaya Prasad etc. under Sec. 333-A of U.P.Z.A. and L.R. Act recommending to set aside order dated 19.1.1991 passed by learned S.D.O. Bhadohi in suit No. 3463/383 under Sec. 229-B of U.P.Z.A. and L.R. Act in respect of the disputed land situate in village Jhingatepur, Taluka Chauthar, Pargana Tahsil and District Bhadohi, whereby the learned S.D.O. had quashed his earlier order dated 2.6.1990 for restraining the defendants from alienating the land in dispute and to allow the revision and to maintain the order dated 2.6.1990. In short the facts are that Bhagauti Prasad plaintiff brought a law suit under Sec. 229-B of Z.A. and L.R. Act in the Trial Court seeking a declaration of Bhumidhari rights in respect of the land in dispute with the allegations that the land in question was recorded in the name of Gaya Prasad defendant No. 1 in the representative capacity as the Karta of the family that the land is ancestral property; that Gaya Prasad, his father had settled in Bilaspur and was not in possession over the land in question from 30-40 years; that as per family settlement the disputed property came in the share of the plaintiff. An application for injunction dated 7.6.1989 was also moved on behalf of the plaintiffs in the Trial Court. No body appeared on behalf of the defendants and ex-parte proceedings were taken against the defendants. The Trial Court passed order dated 2.6.1990 restraining the defendants from alienating the disputed land. The defendants filed objection on 12.6.1990 alleging therein that the defendant is the sole owner of the land after consolidation operation and the land is not ancestral and his two sons are living separately.

(2.) Gaya Prasad also stated that he wanted to purchase better land by selling the land in dispute. Revisionist Bhagauti Prasad filed his counter objection on 18.7.1990 and hearing the parties the learned Trial Court recalled his earlier order dated 2.6.1990 by his order dated 19.1.1991. Feeling aggrieved by this, Bhagauti Prasad went up in revision before Additional Commissioner Varanasi who after hearing both the parties has sent this reference to the Board.

(3.) I have heard the learned counsel for the revisionist and the learned counsel appearing on behalf of the opposite parties and also perused the record. The learned counsel for the revisionist has submitted that the property in question is in danger of being wasted, damaged and alienated by the opposite parties to defeat the ends of justice and as such interim injunction restraining the defendants from disposing of the property ought to have been granted and by refusing the same the learned Trial Court has committed error although all the ingredients for granting injunction namely a prima facie case, the balance of convenience and irreparable loss was in favour of the petitioner.