SMT. PUSHPA MISHRA Vs. SURJEET SINGH

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution takes exception to the order dated 23.09.2017 passed in M.A. No.390036/2017 whereby the miscellaneous appeal filed by the petitioners under Order 43 Rule 1 Code of Civil Procedure has been dismissed by the lower appellate Court.

(2.) The facts narrated by the petitioners are that the suit property is carved out from the original piece of land i.e. Khasra No.545/8 (1.95 hectare). The original owner was Shri Bhawani Singh, who by two different sale deeds dated 02.05.2000 and 19.10.2000, sold 50 decimal of the land to one Shri Harikrishna Rai. Shri Rai sold property to Jyoti Shukla on 07.09.2001. The said khasras were re-numbered as 545/25 and 545/26. Jyoti Shukla sold this property to the petitioner No.2- Rajan Thirumalai. Later on, Rajan Thirumalai sold 1000 sq. ft of land to petitioner No.1 by sale deed dated 28.02.2013.

(3.) Shri Ruprah, learned senior counsel for the petitioner submits that the petitioners' land is situated in Khasra No.545/25/26 whereas respondent-Surjeet Singh is the owner of Khasra No.545/22. Since there is no clinching map and proper demarcation, respondent is trying to take benefit of the situation and filed a civil suit alongwith an application under Order 39 Rule 1 & 2 CPC. The trial Court erred in granting injunction by order dated 17.11.2016. Learned senior counsel contended that in more than one occasion/place, learned trial Court gave a specific finding that there is lot of confusion regarding boundaries of the land mentioned in the respective sale deed. It is urged that when there existed such dispute/confusion, the burden was on the plaintiff to make out a clear case and in absence thereof, the question of grant of injunction did not arise. He referred Para 18 and 22 of order of trial Court (Annexure-P/3).