BIRBAL Vs. SHANKER DEV

JUDGEMENT

(1.) THIS is a revision petition against the judgment dated 2.6.1999 passed by learned Additional District Judge, allowing the appeal of the defendants and refusing to grant injunction in favour of the plaintiff.

(2.) THE facts which are necessary for the disposal of the present revision petition are that Birbal plaintiff filed a suit for permanent injunction restraining the defendants from interfering into the possessory rights of the plaintiff in respect of the suit land as a tenant on payment of 1/3rd Batai under the landlords. Along with the suit the plaintiff also filed an application under Order 39 Rules 1 and 2 read with Section 151, CPC, for the grant of ad interim injunction. The suit and the application were contested by the defendants. The trial Court after hearing both sides vide order dated 20.2.1998, restrained the defendants from interfering into the possession of the plaintiff over the suit land except the land comprised in Square No. 234 and the plaintiff was also restrained from interfering into the possession of defendant No. 1 in respect of suit land comprised in Square No. 234 till the final disposal of the suit. Aggrieved against the said order of the trial Court two appeals were filed, one by the plaintiff and the other by the defendants. Both the appeals were decided together by the learned Additional District Judge vide judgment dated 2.6.1999. The appeal filed by Birbal plaintiff was dismissed while the appeal filed by the defendants was allowed and it was held that the stay order would not be operative in respect of land covered by Square No. 233 which was in possession of Ram Kumar and Amar Singh who were not parties to the suit. Aggrieved against the said judgment, Birbal plaintiff has filed the present revision petition.

(3.) LEARNED counsel appearing for the petitioner submitted before me that as per Nehri Girdawaris, the plaintiff was in possession of the suit property and as such, the Additional District Judge should not have accepted the appeal and should have upheld the order of the trial Court granting injunction in favour of the plaintiff. It was submitted that there was absolutely no reason to prefer entries in the revenue record over and above the entries in the Nehri Girdawaris. On the other hand, learned Counsel appearing for the defendant-respondents submitted before me that Jamabandi and Khasra Girdawaris have to be given preference over Nehri Girdawaris. It was further submitted that there was no reason to interfere with the judicial discretion exercised by the learned Additional District Judge.