MOHD. JUBAIR Vs. DISTT.JUDGE,JAUNPUR & ORS.

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 dn 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 of the finding that no prima facie case was made out. It has come to the finding that plot No. 38 is recorded as parti 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 parti 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 (Juni0r Division) has also 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.) BEFORE entering into merits, Mr. Tbmar had taken a point that the applica­tion under Articles 226-227 is not main­tainable in view of ratio decided in the case ofGanga Saran v. CivilJudge, Hapur, AIR 1991 Alld. 114 and New Jahangir Vakil Mills v. State of Gujarat, 1997 (77) FLR 854.