SHEO RATAN MAHTO Vs. UDAI PRASAD

JUDGEMENT

(1.) APPELLANTS have filed I.A. No. 1492 of 2004 under Order 39, Rules 1 and 2 of Code of Civil Procedure (In short "C P C") for restraining respondents No. 9, 26, 27, 52, 53, 54 and 64 from making alteration/ construction or from changing physical feature of the suit land. In this application, case of the appellants is that respondent No. 53. on 28.2.2004 had collected building materials such as sand, bricks, cements etc. on suit land measuring two kathas appertaining to khata No. 156/83, khesra No. 1459 and is in process of starting construction, respondents No. 26 and 27 are making pucca construction on three katha of suit land appertaining to khata No. 83 and khesra No. 948 since 19.2.2004, respondent No. 9 is making pucca construction from 20.2.2004 on one katha of land of khata No. 83, khesra No. 1312 whereas respondents No. 52, 54 and 64 have already made pucca houses on land appertaining to khata No. 156/83, khesra No. 1459, khata No. 156/83, khesra No. 1459, khata No. 867, khesra No. 1561. Prayer has been made for restraining the aforesiaid respondents from making alteration/construction or changing the feature of the land till disposal of the appeal. Earlier also the appellants had filed a petition on 24.11.1993 under Order 39, Rules 1 and OF C P. C. making similar prayer stating therein that respondents No. 9 to 11, 40, 26, 27, 52 and 57 be restrained from making construction over the suit land and from cutting Babool/Sheesham trees standing on the suit land and they further stated that respondents No. 9 to 11 are in process of installing a flour mill over the suit land appertaining to khata No. 83. and khesra No. 1312 and respondents No. 9 to 11 were also in process of construction of Jhopn since 10.11.1993 and respondent No. 40 on 11.11.1993 had collected building materials for the purpose of construction on 1 -1/2 kathas of land appertaining to khata No. 83, khesra No. 977/981 and respondents No. 26 and 27 had constructed pucca wall on two kathas six dhurs of suit land and respondent No. 52 constructed one pucca room on 30.9.1993 on the suit land appertaining to khata No. 156, khesra No. 1459 and respondent No. 57 had given threatening and he was making preparation to cut one hundred Sheesham trees standing on the suit land appertaining to khata No. 83, khesra No. 1408. By filing a supplementary petition to this petition, the appellants made prayer for deleting the statement made in para -4 that respondents No. 26 and 27 are in process of making further construction and these respondents cut away four bamboo clumps on 15th and 16th November, 1993 and they had threatened to cut remaining bamboo trees and for adding further statement that respondents No. 56(c), 56(d) and 64 recently had constructed three khapraposh rooms on the suit land appertaining to khata No. 867 and khesra No. 1561 and they were in process of making further construction and they had cut away four bamboo clumps out of eighteen bamboo clumps from this plot and they were giving threatening to cut away the remaining bamboo clumps. Respondents No. 9 to 11, 40, 26, 27, 64. 56(c), 56(d), 52 and 57 filed reply to the petitions filed by appellants on 24.11.1993 stating therein that allegation of appellants is false and respondents No. 9 to 11 had installed flour mill in February, 1992 when they purchased land which was purchased by their ancestor Sheikh Roza and respondent No. 40 had been granted purcha by the State of Bihar in 1976. -77 and he had his Phoos house and he has constructed his residential house of brick walls with wooden poles and tiled roof in the year, 1976. -77 and respondents No. 26,27, . the privileged persons, were granted parchas in the year, 1976 -77 and since then they are living in huts and respondent No. 52 had constructed his house on the land which was purchased by him by registered sale deed and allegation of threatening by respondent No. 57 for cutting all bamboo trees is false.

(2.) During the hearing, counsel for the appellants and respondents No. 1 to 11 appeared and on behalf of other respondents, no body appeared. The appellants filed Title Suit No. 255 of 1971 which was subsequently numbered as 12 of 1982 and 5 of 1983 for declaration that they are Sapindas and the next reversioner of Gopal Mahto and Most. Budhiya and Rajpatiya and they were entitled to recover possession of suit land and for declaration that sale deeds detailed in schedules II, III, IllA, llIB and IIIC of the plaint are not binding on the plaintiffs and for declaration that wilful surrender of land by defendant No. 1 in respect of schedule IV is also void and not binding upon them and subsequently purchas issued by the State of Bihar are void, without jurisdiction, fraudulent, illegal and not binding upon them. They further prayed for putting them in possession of the suit land through process of the Court and prayed for a decree for mesne profit after determining it in separate proceeding. The suit of appellants was dismissed on contest. It is the own case of appellants that they are not in possession of the suit land which is in possession of respondents. Out of the respondents against whom injunction has been sought, admittedly, are in possession of the suit land by virtue of purchas granted to them by the State of Bihar and some are on the basis of registered sale deeds. The further case of appellants is that some of these respondents have already made constructions. As stated above, appellants had filed a petition on 24.11.1993 under Order 39, Rules 1 and 2. They prayed for restraining respondents from making alteration/construction on suit lands and from cutting Sheesham trees. It is very strange that the application was pending since long and the appellants did not care to move it since then and now they have come up with same prayer by filing I.A. No. 1492 of 2004. Notwithstanding this fact, respondents, against whom prayer has been made, are in possession of the suit land by virtue of purchas issued in their favour or by sale deeds and prayer of appellants for putting them in possession over the suit land has already been dismissed by the Court below against which the present appeal has been preferred. Appellants have not made out a case that if their prayer is not allowed, they would suffer irreparable loss.

(3.) I , therefore, find no merit in the prayer of appellants and the same is rejected. I.A. No. 1492 of 2004 stands disposed of.