# Ganga Ram v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1381
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-07
- **Case number:** Misc. Single No. 987 of 2010
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ganga-ram-v-state-of-u-p-ors-45482
- **Pages:** 8

## Headnote

A. Petitioner-challenging order-rejecting his
appeal-showing deficiency in the stamp duty-as
petitioner using it-for residential purposefinding based on presumption-as land indispute
surrounded by abadi-ex parte-spot inspectionno notice to petitioner-u/s. 33 r/w 47A & R7(2)-collector-may inspect-the property-after
due notice to the parties-Collector-failed to
exercise the same-committing gross violation-of
provisions of Indian Stamp Act-made ordersrelying upon the ex parte report. Petition
Allowed.

B. Held, this Court has carefully examined the
village map, a copy of which, has been filed as
Annexure-9 to the petition. Plot no.381, 1/4th
part of which had been bought by the
petitioner through the Sale Deed executed on
16.6.20017, has been shown as Domat-1 in the
village map. Domat-1 is a category of soil, on
the basis of which, land revenue or ''lagaan' is
determined for agricultural land, but the village
map does not show the property in question to
be situated in the middle of village Abadi. This
Court fails to understand as to when power
was given to respondent no.4 to make an on
the spot inspection of the property in question,
then why the same was not exercised and on
the spot inspection was not carried out and the
ex-parte
report
of
the
Sub
Registrar,
Mohammdi, Lakhimpur Kheri alone was relied
upon in passing the orders impugned. Writ
petition stands allowed.

Writ Petition allowed. (E-8)

List of cases cited:-

## Text

2 All. Ganga Ram Vs. State of U.P. & Ors.
1381

13. The petition is devoid of merit
and is accordingly dismissed
----------
(2020)02ILR A1381

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.02.2020

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 987 of 2010

Ganga Ram ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajendra Singh Kushwaha

Counsel for the Respondents:
C.S.C.

A. Petitioner-challenging order-rejecting his
appeal-showing deficiency in the stamp duty-as
petitioner using it-for residential purposefinding based on presumption-as land indispute
surrounded by abadi-ex parte-spot inspectionno notice to petitioner-u/s. 33 r/w 47A & R7(2)-collector-may inspect-the property-after
due notice to the parties-Collector-failed to
exercise the same-committing gross violation-of
provisions of Indian Stamp Act-made ordersrelying upon the ex parte report. Petition
Allowed.

B. Held, this Court has carefully examined the
village map, a copy of which, has been filed as
Annexure-9 to the petition. Plot no.381, 1/4th
part of which had been bought by the
petitioner through the Sale Deed executed on
16.6.20017, has been shown as Domat-1 in the
village map. Domat-1 is a category of soil, on
the basis of which, land revenue or ''lagaan' is
determined for agricultural land, but the village
map does not show the property in question to
be situated in the middle of village Abadi. This
Court fails to understand as to when power
was given to respondent no.4 to make an on
the spot inspection of the property in question,
then why the same was not exercised and on
the spot inspection was not carried out and the
ex-parte
report
of
the
Sub
Registrar,
Mohammdi, Lakhimpur Kheri alone was relied
upon in passing the orders impugned. Writ
petition stands allowed.

Writ Petition allowed. (E-8)

List of cases cited:-

1. Sumati Nath Jain vs. State of U.P. and
another, 2016 (2) ADJ 533,

2. Smt. Pushpa Sareen vs. State of U.P.,2015
(3) ADJ 136.

3. Smt. Prakashwati vs. Chief Controlling
Revenue Authority, Board of Revenue, U.P. at
Allahabad and others, (1996) 4 SCC 657

4. State of U.P. and other vs. Ambrish Tandon
and another, (2012) 5 SCC 566

5. Shakeel Ahmad vs. Additional Commissioner,
Judicial, Faizabad, Writ Petition No.1494 (MS)
of 2009

6. Hridya Narayan Mishra vs. Commissioner,
Allahabad Division and another Writ Petition
No.3126 (MS) of 2009

7. Smt. Kusum Lata Jaiswal vs. State of U.P.
and others, 2010(2) ADJ 274

8. Dinesh Tiwari vs. Commissioner, Gorakhpur
and others, 2012(3) AWC 2343: 2011(10) ADJ
1 (NOC)

9. Ramesh Chand Bansal and others vs. District
Magistrate/Collector, Ghaziabad and others, AIR
1999 SC 2126
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. This petition has been filed by the
petitioner challenging the order dated
5.2.2010
passed
by
the
Appellate
Authority, rejecting the appeal of the
petitioner against the order passed by the
1382 INDIAN LAW REPORTS ALLAHABAD SERIES
Collector,
Lakhimpur
Kheri
dated
26.2.2008 and also the order dated
26.2.2008.

2. Brief facts of the case, as have
been stated in the writ petition, are to the
effect that the petitioner purchased 1/4th
portion of Plot no.381 ad-measuring 0.271
hectare of agricultural land through a
registered Sale Deed dated 16.6.2007. The
said Sale Deed was registered as Sale
Deed no.5008 of 2007 before the Sub
Registrar, Mohammdi, Lakhimpur Kheri
after
paying
the
requisite
fee
of
registration and stamp duty etc. as per
Circle
Rate
fixed
by
the
District
Magistrate, Lakhimpur Kheri.

3. It has been submitted by the learned
counsel for the petitioner that the Sub
Registrar, Mohammdi, Lakhimpur Kheri filed
a wrong report, annexing an incomplete map
of the area, where the land in question was
situated on 30.8.2007 and recommended to the
Collector and the Assistant Commissioner
(Stamp) for action to be initiated under Section
33 of the Indian Stamp Act (for short ''the Act')
read with Section 47-A of the Act, indicating a
deficiency of Rs.25,070/- as deficiency of
stamp duty (Rs.4460/- as registration fees). A
notice was issued to the petitioner on
5.11.2007 by the Assistant Commissioner
(Stamp) and the petitioner submitted his
written objection, stating that the land in
question is agricultural in nature and his crops
are standing thereon and it was not used for
any residential purposes and that a spot
inspection may be carried out by the Tehsildar
concerned. The objection of the petitioner was
ignored and the recommendation report of the
Sub Registrar, Mohammdi, Lakhimpur Kheri
was confirmed by the Collector, Lakhimpur
Kheri by his order dated 26.2.2008, also
imposing penalty of Rs.25,070- and Rs.3760/-
as interest.

4. The petitioner being aggrieved, filed
an appeal before respondent no.2, namely
Appeal no.129/466/2008-09 under Section 56
of the Act and also deposited Rs.19,454/- i.e.
1/3rd of the amount of fine and stamp duty in
the Treasury. On 2.12.2008, the Appellate
Authority stayed the implementation of the
order dated 26.2.2008. Later, however, the
appeal was rejected and the order of
respondent no.4 was affirmed by the Appellate
Authority.

5. It has been argued by the learned
counsel for the petitioner that at the time
of purchase, execution and registration of
Sale Deed, the land in question was
recorded as agricultural land in the
revenue records. Till date, no notification
under Section 143 of the U.P.Z.A. and
L.R. Act has been issued by the competent
authority, declaring it as land used for non
agricultural
purposes.
It
has
been
submitted that there are several judgments
of this Court, which hold that stamp duty
is to be charged on the property in
accordance with its present status and not
its future potential. The valuation cannot
be determined on a presumption that the
land is situated in close proximity of Abadi
area or on the presumption that the land is
intended to be used for the purpose other
than agricultural.

6. Learned counsel for the petitioner
has submitted that the khasra of the land in
question i.e. the field book of village
Kunwarpur shows that crops of sugarcane,
potato, and onion was being sown on the
land in question.

7. Learned Standing Counsel, on the
basis of counter affidavit filed on behalf of
the respondents has submitted that within
two months of the date of purchase of the
property in question, the site was inspected
2 All. Ganga Ram Vs. State of U.P. & Ors.
1383
by
the
Sub
Registrar,
Mohammdi,
Lakhimpur Kheri on 30.8.2007 and he
submitted his report, finding that the Sale
Deed had been executed and the stamp
duty paid, showing the property in
question to be used for agricultural
purposes, whereas the purchaser had
bought the property in question for
residential purposes. It was found that no
crop was sown in the property in question.
Instead, it was being used for drying cowdung cakes to be used as fuel. Moreover,
the boundaries shown in the Sale Deed
were also misrepresented. It was found on
inspection that on the eastern side of the
plot in question, there was the field of
Ganga Ram. On the west, there was a eight
feet wide road and thereafter, the residence
of Saligram and also the Sahan of
Saligram on the northern side of the plot
and on the southern side, there was a
vacant land. Since the land in question was
situated in the midst of Abadi of the
village, it was rightly inferred by the Sub
Registrar, Mohammdi, Lakhimpur Kheri
that the same had been purchased for
residential purposes.

8. It has also been submitted that the
procedure prescribed under the Rules was
followed
and proper
opportunity
of
hearing was given to the petitioner by
issuing a notice to him on 5.11.2007 and
then the order impugned was passed. The
Collector had found that at the time when
the Sale Deed was executed, the Circle
Rate determined by the District Magistrate
for village Abadi was Rs.500/- per square
meter. The property in question being
1/4th area of Plot no.381 ad-measuring
678.94 square meters, on the basis of the
Circle Rate determined by the District
Magistrate, its value was Rs.33,40,000/-,
and on such value Rs.27,200 was payable
as stamp duty and Rs.5020/- as registration
fees. The petitioner, on the other hand, had
paid only Rs.2170/- as stamp duty and
Rs.540/- as registration fee, therefore,
deficiency in stamp duty, deficiency in
registration fee and penalty was imposed
and as per Rules, the same was payable
with 1.5% interest per month to be charged
from the date of execution of Sale Deed
till the date of actual payment.

9. With regard to the submissions
made by the learned counsel for the
petitioner that the field book showed that
sugarcane crop, potato crop and onion
crop were being sown on the plot in
question, it has been stated in the counter
affidavit that the entries in the filed book
cannot be treated to be final in such a case.
Moreover, Collector had rightly found
from a perusal of the map of the village
submitted by the petitioner along with his
reply to the show cause notice that the plot
in question was situated in the middle of
village Abadi and there was a valid
presumption drawn that it can be used for
residential purposes.

10. With regard to the contention
raised in the writ petition that no
declaration/notification under Section 143
of the U.P.Z.A. and L.R. Act had been
made by the competent authority, it has
been stated in the counter affidavit that the
petitioner cannot derive any benefit out of
his own wrong. The petitioner was
supposed to get declaration under Section
143 of the U.P.Z.A. and L.R. Act issued
from the appropriate authority.

11. Learned counsel for the petitioner
while arguing the case, has placed reliance
upon several decisions of the coordinate
Benches of this Court, namely, (i) Smt.
Neelam Gupta Vs. Commissioner, Kanpur
Division, reported in (2007) (25) LCD 36;
1384 INDIAN LAW REPORTS ALLAHABAD SERIES
(ii) Naresh Kumar Sonkar Vs. State of U.P.
and Others, reported in [2008 (26) LCD
1590]; (iii) Surendra Singh and Another
Vs. State of U.P. and Others, reported in
[2009 (27) LCD 442]; (iv) Ashish Kumar
Singh and Others Vs. State of U.P. and
Others, reported in [2010 (28) LCD
945];(v) Bansal Global Finance Limited
Vs. Chief Controlling Revenue Authority
and Others, reported in [2010 (28) LCD
1574]; (vi) Varun Goyal Vs. State of U.P.
and Others, reported in (2015) 2 ADJ 311;
(vii) Smt. Kaushilya Dwivedi and Another
Vs. Commissioner, Lucknow Division and
Others, writ petition decided by a Coordinate
Bench
of
this
Court
on
19.05.2010, and a judgment of the
Division Bench in Sumati Nath Jain vs.
State of U.P. and another, reported in 2016
(2) ADJ 533, and a Full Bench decision of
this Court in Smt. Pushpa Sareen vs. State
of U.P., reported in 2015 (3) ADJ 136.

12. Learned counsel for the
petitioner has also placed reliance upon
two judgments of the Supreme Court in
the cases of Smt. Prakashwati vs.
Chief Controlling Revenue Authority,
Board of Revenue, U.P. at Allahabad
and others, (1996) 4 SCC 657 and
State of U.P. and other vs. Ambrish
Tandon and another, (2012) 5 SCC
566.

13. Learned Standing Counsel, on
the other hand, has placed reliance
upon two judgments rendered by this
Court in Writ Petition No.1494 (MS) of
2009: Shakeel Ahmad vs. Additional
Commissioner,
Judicial,
Faizabad,
decided
on
16.5.2019,
and
Writ
Petition No.3126 (MS) of 2009: Hridya
Narayan Mishra vs. Commissioner,
Allahabad
Division
and
another,
decided on 21.2.2019.

14. Having heard the learned
counsel for the parties, this Court has
perused the impugned order passed by
respondent no.4 dated 26.2.2008. From
a perusal thereof, it appears that the
proceedings under Section 33/47-A of
the Act were initiated on a report
submitted
by
the
Sub
Registrar,
Mohammdi, Lakhimpur Kheri dated
30.8.2007
regarding
deficiency
in
stamp duty and registration fee with
regard to the property in question. The
petitioner was issued a notice and he
filed his reply. The respondent no.4
found that the plot Inspection report
stated that the property in question had
been wrongly shown to be used for
agricultural
purposes
and
its
boundaries had also been wrongly
shown. No crop was found to be sown
on the property in question and it being
surrounded on the western side by
eight feet wide road and on the other
three sides by residential houses and
properties and being situated in the
middle of the village Abadi, was liable
to be charged at the Circle Rate
determined
by
the
Collector
@
Rs.500/-
per
square
meter
for
residential purpose. Not only the
boundaries were wrongly shown of the
plot in question, but no crop was found
to be sown in the property and it was
being used for drawing cow-dung
cakes for fuel. The respondent no.4,
therefore, found deficiency in stamp
duty and imposed penalty, amounting
to total of Rs.54,600/- and also
directed payment of interest @ 1.5%
per month from the date of execution
of Sale Deed till the date of actual
payment.

15. In the order passed by the
Appellate Authority also, the same
2 All. Ganga Ram Vs. State of U.P. & Ors.
1385
facts that were mentioned by the
Collector in the impugned order, have
been reiterated and the order of the
respondent no.4 has been affirmed by
the respondent no.2.

16. In the judgments, that have been
relied upon by the learned counsel for the
petitioner, passed by various coordinate
Benches of this Court, few main points
have been reiterated that relate to non
declaration of the property to be used for
non agricultural purposes under Section
143 of the U.P.Z.A. and L.R. Act, and also
that future or intended use of the property
in question would not determine the stamp
duty payable in respect of agricultural
land.

17. The coordinate Benches have
also referred to the judgments of this Court
and of the Supreme Court that situation of
the land in a semi urban area or near a
residential colony cannot lead to a
presumption that the land in question shall
be used for residential purposes.

18. A Full Bench of this Court in
Smt. Pushpa Sareen (supra) has taken
care of such judgments of Hon'ble Single
Judges and Division Benches in Paras 21
and 23 of the said report. Paras 21 and 23
are being quoted hereinbelow:

"21. The attention of the Court
has been drawn to certain judgments of
the learned Single Judges of this Court
which had taken the view that the market
value of the land could not be determined
with reference to the use of the land to
which the buyer intends to put it in future.

23. In certain judgments of the
learned Single Judges of this Court, a view
had been taken that the authorities are
required to determine the value of the land
on the date on which the sale was made
and cannot consider the potential value of
the land to which it could be put to use in
future. Smt. Kusum Lata Jaiswal vs. State
of U.P. and others, 2010(2) ADJ 274.
Similarly
in
Dinesh
Tiwari
vs.
Commissioner, Gorakhpur and others,
2012(3) AWC 2343: 2011(10) ADJ 1
(NOC), it was held that the Collector had
no power to assess the market value of the
property on the basis of a future value
which the property may acquire."

19. The Full Bench thereafter
considered the question whether the
Collector has power to fix the valuation of
a plot on the assumption that it is likely to
be
used
for
commercial
purposes/residential purposes and whether
the presumed future prospective use of the
land can be a criterion for valuation by the
Collector.

20. The Full Bench in Smt. Pushpa
Sareen (supra) has referred to object of
the Indian Stamp Act as was discussed by
the Supreme Court in Ramesh Chand
Bansal
and
others
vs.
District
Magistrate/Collector,
Ghaziabad
and
others, AIR 1999 SC 2126 (Para-5
thereof). It has been submitted that the
object of the Indian Stamp Act is to protect
the State revenue. The Supreme Court
observed in Para-5 as follows:

"5. ............It is matter for
common knowledge in order to escape
such duty by unfair practice, many a time
under valuation of a property or lower
consideration is mentioned in a sale deed.
The imposition of stamp duty on sale deeds
are on the actual market value of such
property and not the value described in the
instrument. Thus, an obligation is cast on
authority to properly ascertain its true
1386 INDIAN LAW REPORTS ALLAHABAD SERIES
value for which he is not bound by the
apparent tenor of the instrument. He has
to truly decide the real nature of the
transaction and value of such property.
For this, Act empowers an authority to
charge stamp duty on the instrument
presented before it for registration. The
market value of a property may vary from
village to village; from location to location
and even may differ from the sizes of area
and other relevant factors. This apart
there has to be some material before such
authority as to what is likely value of such
property in that area. In its absence it
would
be
very
difficult
for
such
Registering
Authority
to
assess
the
valuation of such instrument. It is to give
such support to the Registering Authority
the Rule 340-A is introduced. Under this
Collector has to satisfy himself based on
various factors mentioned therein before
recording the circle rate, which would at
best be the prima facie rate of that area
concerned. This is merely a guideline
which helps the Registering Authority to
assess the true valuation of a transaction
in an instrument. This gives him material
to test prima facie whether description of
valuation in an instrument is proper or
not.... Reading Section 47-A with the
aforesaid Rule 340-A it is clear that the
circle rate fixed by the Collector is not
final
but
is
only
a
prima
facie
determination of rate of an area concerned
only to give guidance to the Registering
Authority to test prima facie whether the
instrument has properly described the
value of the property. The circle rate under
this Rule is neither final for the authority
nor to one subjected to pay the stamp duty.
So far sub-sections (1) and (2) it is very
limited in its application as it only directs
the Registering Authority to refer to the
Collector
for
determination
in
case
property
is
under
valued
in
such
instrument. The circle rate does not take
away the right of such person to show that
the property in question is correctly valued
as he gets an opportunity in case of under
valuation to prove it before the Collector
after reference is made. This also marks
the dividing line for the exercise of power
between the Registering Authority and the
Collector. In case the valuation in the
instrument is same as recorded in the
circle rate or is truly described it could be
registered by Registering Authority but in
case it is under valued in terms of subsection (1) or sub-section (2), it has to be
referred and decided by the Collector.
Thus, the circle rate, as aforesaid, is
merely a guideline and is also indicative of
division of exercise of power between the
Registering Authority and the Collector."

21. Thereafter, the Full Bench in
Para-27 of the report held as under:

"27. Undoubtedly, the Collector
is not permitted to launch upon a
speculative inquiry about the prospective
use to which a land may be put to use at
an uncertain future date. The market
value
of
the
property
has
to
be
determined with reference to the use to
which the land is capable reasonably of
being put to immediately or in the
proximate future. The possibility of the
land becoming available in the immediate
or near future for better use and
enjoyment reflects upon the potentiality
of the land. This potential has to be
assessed with reference to the date of the
execution of the instrument. In other
words, the power of the Collector cannot
be unduly circumscribed by ruling out
the potential to which the land can be
advantageously deployed at the time of
the execution of the instrument or a
period reasonably proximate thereto.
2 All. Ganga Ram Vs. State of U.P. & Ors.
1387
Again the use to which land in the area
had been put is a material consideration.
If the land surrounding the property in
question has been put to commercial use,
it would be improper to hold that this is a
circumstance which should not weigh
with the Collector as a factor which
influences the market value of the land."
(Emphasis Supplied)

22. The Full Bench considered the
fact that the land may be put to some other
use at a later point of time, but that may
not be a relevant criteria for deciding the
value for the purpose of stamp duty as held
by the Supreme Court in the case of
Ambrish Tandon (supra).

23. The Full Bench, nevertheless in
Para-28 observed thus:

"28. .......Where, however, the
potential of the land can be assessed on
the date of the execution of the
instrument itself, that is clearly a
circumstance which is relevant and
germane to the determination of the true
market value. At the same time, the
exercise before the Collector has to be
based on adequate material and cannot be
a matter of hypothesis or surmise. The
Collector must have material on the record
to the effect that there has been a change
of use or other contemporaneous sale
deeds in respect of the adjacent areas that
would have a bearing on the market value
of
the
property
which
is
under
consideration."

(Emphasis Supplied)

24. In view of the observations made
by the Full Bench of this Court, the
Collector, no doubt was entitled to issue
notice on the basis of Spot Inspection
Report submitted by the Sub Registrar,
Mohammdi, Lakhimpur Kheri, but the
procedure thereafter prescribed under the
Rules was not followed.

25. Under the U.P. Stamp Valuation
of Property Rules, 1997, Rule-7 provides
the procedure on receipt of a Reference or
when suo motu action is proposed under
Section 47-A of the Act. Rule 7(2)(c)
provides that the Collector may inspect the
property after due notice to parties to the
instrument.

26. The complete reading of the
aforesaid Rule clearly indicates that while
deciding the proceedings under Section
47-A of the Act, the Collector or any other
officer authorized to determine stamp duty,
is required to make an inspection after due
notice to the parties to the instrument. The
proceedings under Section 47-A of the Act
shall not be decided merely placing
reliance on the ex-parte report of the Sub
Registrar or the Tehsildar for that purpose.

27. In the case at hand, the petitioner
has stated in the writ petition that the Sub
Registrar, Mohammdi, Lakhimpur Kheri
inspected the property in question on
30.8.2007 without notice to the petitioner
and an ex-parte report was submitted. The
petitioner disputed the report by annexing
copies of the field book and all the land
records i.e. khasra and khatauni, showing
that the land was not only recorded as land
for agricultural purposes in the khatauni,
but
was
actually
being
used
for
agricultural purposes in khasra. A dispute
having been raised, an inspection ought to
have been carried out by respondent no.4.
He took a shortcut instead. He examined
the map of the village concerned and as
mentioned in the order impugned that the
land in question was surrounded by Abadi
land
of
the
village,
therefore,
a
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption was drawn that the land in
question would be used for residential
purposes.

28. This Court has carefully
examined the village map, a copy of
which, has been filed as Annexure-9 to the
petition. Plot no.381, 1/4th part of which
had been bought by the petitioner through
the Sale Deed executed on 16.6.20017, has
been shown as Domat-1 in the village
map. Domat-1 is a category of soil, on the
basis of which, land revenue or ''lagaan' is
determined for agricultural land, but the
village map does not show the property in
question to be situated in the middle of
village Abadi.

29. This Court fails to understand as
to when power was given to respondent
no.4 to make an on the spot inspection of
the property in question, then why the
same was not exercised and on the spot
inspection was not carried out and the exparte
report
of
the
Sub
Registrar,
Mohammdi, Lakhimpur Kheri alone was
relied
upon
in
passing
the
orders
impugned.

30. The orders impugned dated
26.02.2008 and 05.02.2010 are set aside.

31. The petitioner has already
deposited Rs.19,454/- before the Appellate
Authority in the nature of a pre-deposit for
filing of appeal and has also deposited
Rs.15,000/-
in
pursuance
of
the
conditional interim order granted by this
Court on 24.2.2010. The same shall be
returned to the petitioner on appropriate
application being made by the petitioner to
the competent authority.

32. The writ petition stands allowed.
----------
(2020)02ILR A1388

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.02.2020

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 3855 of 2020

Matawar Prasad ...Petitioner
Versus
District Judge Shravasti & Ors.
 ...Respondents

Counsel for the Petitioner:
Mohan Singh

Counsel for the Respondents:
--

A. Civil Law-Civil procedure Code, 1908-OXXXIX R-1 & 2 and Sec 151-Petitionerchallenging
order-rejecting-temporary
injunction
application-seeking
directionrestraining respondents from using the sahan
land-as raasta-no final finding-by the Courtregarding-title or claim of the petitioner-prima
facie
finding-based
on
revenue
recordsproperty in dispute-be raasta-no infirmity in the
order-Petition Dismissed.

B. Held, this Court considered the three
ingredients for grant of temporary injunction
under Order 39 Rule 1 and 2 CPC i.e. prima
facie case, balance of convenience and
irreparable loss. In this judgment again this
Court held that ultimately it is for the court to
decide whether in the facts and circumstances
of the case it is necessary to protect the
property which is subject matter of suit. Also it
observed that if a party fails to prove prima
facie case to go for trial, it is not open to the
court to grant interim injunction in his favour
even if he made out a case for balance of
convenience being in his favour and that he
would suffer irreparable loss or injury if no
injunction order is granted. This Court finds
from the orders impugned that no final finding
has been arrived at with regard to the title or