BHOLI DEVI Vs. SUNIL KUMAR

JUDGEMENT

(1.) Initially, the plaintiff had, in, Civil Suit No. 82/1 of 2015, titled Bholi Devi vs. Sunil Kumar, claimed rendition of a decree, for, permanent prohibitory injunction, vis-a-vis, the suit khasra numbers, and, against the defendants. However, during the pendency, of, the afore civil suit, an affirmative order stood pronounced, by, the learned trial Judge, upon, an application, cast, therebefore under the provisions, of, Order 6 Rule 17 CPC, (i) wherein, the plaintiff had prayed, for, leave being becoming afforded, for, incorporating averments, in, the body of the plaint, and, also in the relief clause, vis-a-vis, the defendants, encroaching, upon, the suit khasra numbers, (ii) and, thereupon, a, declaratory decree, of, mandatory injunction, becoming pronounced against them.

(2.) Though, the extant application, cast under the provisions, of, Order 26 Rule 9 CPC, became instituted prior to the afore orders becoming recorded, upon, the afore application, (i) yet, the learned trial Judge had deferred, the meteing, of, an adjudication, upon, the afore application, upto, evidence becoming adduced, by, the litigant concerned, upon, issue(s) appertaining therewith, (ii) hence, after closure of evidence, upon, the relevant issue, hence a dis-affirmative order, stood pronounced thereon, and, with the plaintiff becoming aggrieved therefrom, she casts, a challenge thereon, before this Court.

(3.) The learned counsel, for the defendants, contends that, with, a conclusive, and, binding order, of, dismissal becoming recorded, upon, an application, cast, under the provisions of Order 39 Rule 2-A CPC, thereupon, the, plaintiff becoming completely barred, and, precluded, to, strive, to, invalidate the impugned order, hence before this Court. However, the afore submission cannot be accepted, (a) as the afore application became instituted, before the learned trial Judge, prior to, the, recording of the impugned order, (b) besides the afore conclusive order, as, pronounced, upon, an application, cast under Order 39 Rule 2-A, CPC, rather becoming recorded thereon, dehors, any valid demarcation becoming conducted, by the revenue official concerned, (c) whereas, only, upon a valid apposite demarcation becoming conducted, by the revenue official concerned, rather would ensure whether the defendants-non-applicants, hold any valid contest, to, benumb the espousal, of, the plaintiffapplicant, to, seek pronouncement, of, a declaratory decree, for, hence demolishing the construction, made, upon the land, owned, and, possessed by the defendants, (d) consipicously, only a valid demarcation conducted, by the revenue official concerned, would enable emergence, of, determinations, vis-a-vis, the encroachment, becoming made, or not becoming made, hence by the defendants-nonapplicants, upon the land, owned, and, possessed, by the plaintiff. Also, when it comprises the best, and, befitting evidence to enable the learned trial Judge, to, rest the controversy, hence, the, rejection, of, the plaintiff's application, by the learned trial Judge concerned, is, unmeritworthy. Conspicuously, also, the, conclusive resting, of, the afore controversy becomes the prima donna duty, of, the learned trial Judge, and, reiteratedly, the, afore evidence becomes the apt therewith rather befitting documentary evidence.