# Matawar Prasad v. District Judge Shravasti & Ors

- **Citation:** (2020) 2 ILRA 1388
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-11
- **Case number:** Misc. Single No. 3855 of 2020
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/matawar-prasad-v-district-judge-shravasti-ors-45484
- **Pages:** 7

## Headnote

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
2 All. Matawar Prasad Vs. District Judge Shravasti & Ors.
1389
the claim of the petitioner to the land in
dispute to be used by him as sahan. Only a
prima facie finding has been recorded that in
the revenue records, Plot no.580 has been
recorded
as
raasta
and
in
the
Amin
Commissioner's report also, it was found to be
used by other persons as well and that the
houses of other persons were opening there on
the disputed piece of land.

List of cases cited:-

## Text

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
2 All. Matawar Prasad Vs. District Judge Shravasti & Ors.
1389
the claim of the petitioner to the land in
dispute to be used by him as sahan. Only a
prima facie finding has been recorded that in
the revenue records, Plot no.580 has been
recorded
as
raasta
and
in
the
Amin
Commissioner's report also, it was found to be
used by other persons as well and that the
houses of other persons were opening there on
the disputed piece of land.

List of cases cited:-

1. Kendriya Karmchari Sahkari Grih Nirman
Samiti
Ltd.
vs.
New
Okhla
Industrial
Development Authority, 2009 (27) LCD 185

2. Anupam Sahkari Avas Samiti Ltd. vs.
Additional District Judge, Lucknow, 2006 (24)
LCD 137

3. Badadeen and another vs. Additional District
Judge, W.P No.962 (MS) of 2014

4. Manohar Lal Chopra vs. Rai Bahadur Rao
Seth Hiralal AIR 1962 SC 527

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard learned counsel for the
petitioner
and
perused
the
orders
impugned.

2. The petitioner is aggrieved by the
order dated 18.9.2019 passed by the Civil
Judge
(Junior
Division),
Shravasti,
rejecting the application of the petitioner
for temporary injunction in Regular Suit
No.36/2017 (Matawar Prasad vs. Jagdish
and others) and the order dated 13.1.2020
passed by the District Judge, Shrawasti in
Misc. Civil Appeal No.22/2019.

3. It is the case of the petitioner
that he filed a regular suit for
permanent
injunction
against
the
private respondents, who are the Gram
Pradhan and his two brothers saying
that the petitioner has a house situated
in village Parsiya and his house is in
two parts; one part of the house is used
for residence and the remaining is used
for Ghari, Bhusaila and Charani for
cattle, where he has also installed his
machinery. In between two parts of the
residential houses and Bhusaila, there
is a sahan land, which is also used as
ingress and egress of tractor and trolley
belonging to the petitioner. The sahan
land is now being tried to be converted
into public raasta by the respondent
nos.3 to 5 due to panchayat election
rivalry. The sahan land is marked as A,
B, C and D in the map annexed with
the plaint and that the respondents no.3
to 5 be restrained from using the sahan
land as raasta and making it into the
kharanja marg. On the case being
registered and notice being issued,
respondent nos.3 to 5 filed their
objection
to
the
application
for
temporary
injunction,
but
in
the
meantime, the trial court had also
passed an ex-parte interim order on the
date of registration of the suit i.e. on
17.1.2017
that
the
parties
shall
maintain status quo over the land in
question. After written statement and
objections were filed, the petitioner
filed his replication also. An Amin
Commissioner was appointed by the
learned trial court on 17.1.2017 on an
application moved by the petitioner
and the Amin Commissioner visited the
land in question on 18.4.2017 and
submitted his report. The petitioner
filed his objection to the report of the
Amin Commissioner. The learned trial
court while deciding the application for
temporary injunction Paper no.6A by
the impugned order dated 18.9.2019,
has
rejected
the
petitioner's
apprehension on the ground of failure
1390 INDIAN LAW REPORTS ALLAHABAD SERIES
to make out a prima facie case. The
petitioner filed an appeal, which has
also been rejected.

4. It has been pointed out that during
the pendency of appeal, an interim order of
maintenance of status quo had been
granted by the appellate court, which has
now merged with the order, rejecting the
appeal. Hence the need arose to file this
petition.

5. It has been submitted by the
learned counsel for the petitioner that the
learned trial court while passing the order
impugned has misinterpreted the Amin's
report and has taken the raasta mentioned
in the revenue records as Gata no.580 to
be the land on which the petitioner's sahan
is situated, whereas the petitioner's house
is situated on Abadi Gata no.669 and not
on Gata no.580.

6. It has also been submitted by
the learned counsel for the petitioner
that while rejecting the application for
temporary injunction, the learned trial
court has failed to appreciate the
principles
for
grant
of
temporary
injunction and has conducted a mini
trial, giving a finding against the
petitioner.

7.
 Learned
counsel
for the
petitioner has submitted on the basis of
judgment
rendered
in
Kendriya
Karmchari Sahkari Grih Nirman Samiti
Ltd.
vs.
New
Okhla
Industrial
Development Authority, 2009 (27) LCD
185
that
when
the
question
of
immovable property is involved, the
trial court should have passed an order
to maintain status quo. Learned counsel
for the petitioner says that rejection of
the application for temporary injunction
may lead to irreparable loss being
caused to the petitioner. He has referred
to Para-9 of the judgment to buttress his
argument.

8. Learned counsel for the petitioner
has also placed reliance upon the judgment
in Anupam Sahkari Avas Samiti Ltd. vs.
Additional District Judge, Lucknow, 2006
(24) LCD 137, and has referred to Para-17
of the judgment to say that mini trial
should not be conducted while considering
the application for temporary injunction by
the trial court.

9. Learned counsel for the petitioner
has also placed reliance upon the judgment
and order dated 17.2.2014 passed in Writ
Petition No.962 (MS) of 2014 (Badadeen
and another vs. Additional District Judge,
Court no.3, Bahraich and others) to say
that there is a difference between the
prima facie case and prima facie title,
which the trial court has failed to
appreciate
while
considering
the
application for temporary injunction.

10. This Court has perused the
impugned orders passed by the trial court,
where the trial court after mentioning the
facts as mentioned in the plaint has also
mentioned the facts as mentioned in the
objections to the application Paper no.6C
by the defendants registered as Paper
no.21A. The defendants had stated that the
land in question is a public raasta on
which, under the village development
plan, kharanja has to be laid and not only
the petitioner house is situated on the
northern side of such raasta, but that of
others
including
the
defendants
are
situated on the northern side of such
raasta. A mention has also been made of
the fact that objection has been raised
regarding non joinder of necessary party
2 All. Matawar Prasad Vs. District Judge Shravasti & Ors.
1391
under Order 1 Rule 8 CPC as the petitioner
in effect wants the Court to declare pubic
raasta as his sahan. The Gram Panchayat is
a necessary party and has not been
impleaded.
The
learned
trial
court
thereafter has considered the arguments
raised by the leaned counsel for the
plaintiffs that the land in question had
been left by the plaintiffs themselves to be
used as sahan and the Amin Commissioner
had found it being used by the people but
such people were the family members of
the petitioner himself and not the members
of general public. However it has rejected
such argument by going through the Amin
Commissioner's report which mentioned
clearly that the land in dispute which the
plaintiff was referring to as his sahan was
being used by several people for going
from the road to the pond on the other
side. The revenue records also show Plot
no.580 to be public raasta, therefore, no
prima facie case was made out in favour of
the plaintiff and since there was no prima
facie case, there was no question of
balance of convenience in favour of the
plaintiff and irreparable loss being cause to
the plaintiff.

11. The learned trial court has also
considered the argument raised by the
learned counsel for the plaintiff that the
land in question is 15 feet wide on the
western side and 17 feet wide on the
eastern side, therefore, although it is 147
feet in length, it cannot be considered as
public raasta, as for public raasta, both
sides must be equal, but has observed that
such argument cannot be appreciated as in
villages, there is no planned development
and, therefore, there may be a difference
on the western and eastern side of the land
in question, but from the nature of its
measurements, it may still be considered
to be a public raasta.

12. Learned counsel for the petitioner
has stated that the petitioner had taken this
ground in appeal that the land in question
is situated at Plot no.669 and not on Plot
no.580, which is marked as public way in
revenue records, but it has not been
appreciated correctly by the learned trial
court.

13.

The
petitioner's
argument
regarding the land in question being
situated in Abadi Gata no.669 and not in
Gata no.580 recorded as public raasta has
also been considered by the appellate court
and it has rejected the same by saying that
although the petitioner may have some
case with regard to declaration of the land
in dispute being situated at Gata nos.669
and not Gata no.580, but the fact that the
revenue entries showed that it is part of
Plot no.580 cannot be overlooked and the
Civil Court cannot entertain any dispute
with regard to revenue entries. If the
appellant had any dispute regarding wrong
marking of Plot no.580 in the revenue map
of the village concerned, then he may
approach
the
competent
court
for
correction of the same.

14. This Court finds that whether the
land in dispute is situated in Plot no.669
which is Abadi plot or Plot no.580, which
is marked as public way in the revenue
records and village map, is a question to
be decided on the basis of the pleadings
and evidence to be led before the
appropriate court.

15. This Court has considered the
order passed by the learned trial court,
rejecting the application for temporary
injunction and also the order passed by the
appellate court and finds that there is a
detailed consideration of the submissions
made and also an appreciation of the
1392 INDIAN LAW REPORTS ALLAHABAD SERIES
revenue records and the report of Amin
Commissioner. It cannot be said that the
orders
have
been
passed
without
application of mind to the case setup by
the petitioner.

16. With regard to the illegality in the
orders passed, as submitted by the learned
counsel for the petitioner that the trial court has
conducted a mini trial and has failed to
appreciate the difference between the prima
facie case and prima facie title, this Court finds
that the argument can also be raised the other
way round. From a bare perusal of the Amin
Commissioner's report and the map that the
petitioner had submitted along with the plaint
and the map submitted by the defendants in
their objections and written statement, it is
evident that the land in question is 147 feet
long and 15 to 17 feet wide on the western and
eastern side respectively and not only the
petitioner's house, Ghari, Bhusaila and Charani
opened on the same but that of other houses
also opened on the same. Therefore, it appears
that the learned trial court and the appellate
court did not commit any illegality in rejecting
the application for temporary injunction as any
temporary injunction in such matters would
also affect the right of all others in the village
without they being made a party or without the
sitting Gram Panchayat being made a party.
The contesting respondents/defendants have
been impleaded by the petitioner in their
personal capacity, although one of them is the
Gram Pradhan and in the written statement it
has come out that the land in question has been
identified in the village development plan for
laying kharanja i.e. brick soiling.

17. Now this Court considers the
judgments cited by the learned counsel for the
petitioner.

18. In the first case i.e. in Kendriya
Karmchari Sahkari Grih Nirman Samiti
Ltd.
(supra),
the
petitioner
was
a
Cooperative Housing Society which had
allegedly purchased 292 bighas of land
situated in village Chhalera of District
Gautam Budh Nagar, commonly known as
NOIDA, U.P. for housing purposes from
the funds contributed by its members
before
acquisition
by
the
State
Government for establishment of NOIDA.
After acquisition NOIDA wanted to allot
the plots to the members of the Society in
its planned developed sectors. NOIDA
directed the Society to furnish list of bona
fide members and also directed to deposit
40% of the premium. The plaintiff
petitioner did so and in between 1994 to
1996, a total sum of Rs.36 crores had been
deposited. The allotment of certain land
was done by NOIDA initially but was later
on
cancelled
on
grounds
of
misrepresentation. The Society filed its
civil suit along with an application for
temporary injunction. The learned trial
court held that by issuance of allotment
letter, no legal right had been created in
respect of the land in favour of the plaintiff
Society. The application for temporary
injunction was rejected by the trial court
on 30.5.2006, which was appealed in a
First Appeal From Order before this Court,
which was being considered by the
Division Bench.

The Division Bench came to the
conclusion on the basis of evidence led
that the trial court had proceeded in a
matter as if it was going to finally
conclude the hearing of a suit and held that
when there is a question of title involved
and decision is yet to be taken on the basis
of material evidence, no final conclusion
can be drawn. Learned trial court failed to
appreciate in spite of cancellation of
allotment. NOIDA had not returned a huge
amount of 36 crores that the Society had
2 All. Matawar Prasad Vs. District Judge Shravasti & Ors.
1393
deposited and NOIDA was enjoying its
interest till the date of hearing of First
Appeal by this Court. In such case, if
interim injunction was refused only
because of cancellation of allotment while
the other Societies standing on equal
footing had already got the allotment, it
would act against the interest of the
plaintiff. If today the land, which was
allotted to the society, was given to a third
party, right of such third party will accrue.
In such circumstances, efforts of the
appellant would be futile. The Division
Bench made such observations in a First
Appeal From Order and not in a petition
under Article 227 of the Constitution of
India.

19. In Anupam Sahkari Avas Samiti
Ltd. (supra), learned counsel for the
petitioner has placed reliance upon Para17. However, Para 17 cannot be read
without reference to the fact in which this
court made the observation. The petitioner
was a housing society which had entered
into a registered agreement of sale for a
plot of land with private persons. Some
part of land was sold of by a private
person to the Society and the name of the
Society was mutated in the revenue
records. Later on private persons executed
an unregistered sale deed in favour of
another cooperative housing society for
the rest of the land and the private housing
society transferred the land to a third
society,
respondent
no.2
through
a
registered sale deed. The third society tried
to encroach upon the land of the petitioner
society and the petitioner filed a suit along
with
an
application
for
temporary
injunction. The trial court had granted exparte temporary injunction directing the
parties to maintain status quo and also
directing the defendants to file their
written statements. Feeling aggrieved by
the order passed by the trial court an
appeal was filed by the defendant which
was allowed by the appellate court and
therefore, petition was filed under Article
227 by the plaintiff praying for setting
aside the order passed by the appellate
court. This Court considered the fact that
the right of the defendant had arisen on the
basis of an unregistered sale deed.

It referred to the judgment
rendered by the Supreme Court in
Manohar Lal Chopra vs. Rai Bahadur Rao
Seth Hiralal AIR 1962 SC 527, where it
was held that the power of the competent
court does not only flow from Order 39
Rule 1 and 2 CPC but also Section 151 of
the CPC while relates to inherent power to
make necessary the order in the interest of
justice. The court can exercise its inherent
jurisdiction under Section 151 CPC when
it considers it necessary in the ends of
justice to so do. It also referred to the
judgment of the Supreme Court in Anand
Prasad Agarwalla where the Supreme
Court held that it may not be appropriate
to hold a mini trial at the grant of
temporary injunction. The plaintiff had
approached the court on the basis of sale
certificate issued in an auction sale. A
presumption arose in favour of such
person and unless the sale certificate was
set aside or declared to be a nullity, it
remained legally valid and in force and it
could not be said that no right could be
derived from such certificate and made the
observation in Para-17 with regard to the
claim of the petitioner before it.

20. In Babadeen (supra), 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
1394 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

21. This Court finds from the orders
impugned that no final finding has been
arrived at with regard to the title or the
claim of the petitioner to the land in
dispute to be used by him as sahan. Only a
prima facie finding has been recorded that
in the revenue records, Plot no.580 has
been recorded as raasta and in the Amin
Commissioner's report also, it was found
to be used by other persons as well and
that the houses of other persons were
opening there on the disputed piece of
land.

22. This Court therefore, does not
find any legal infirmity in the orders
impugned. It is only one of the possible
views that can be taken by the trial court
and the appellate court and this Court
under Article 227 enjoys a very limited
jurisdiction to interfere in the orders
passed by the subordinate courts.

23. The writ petition is dismissed. No
order as to costs.

24. It is, however, clarified that the
finding recorded by this Court in this order
shall not prejudice the case of the
petitioner, which is yet to be proved on the
basis of evidence led by both the parties.
----------
(2020)02ILR A1394

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.01.2020

BEFORE
THE HON'BLE ALOK MATHUR, J.

Misc. Single No. 4499 of 2015

Hari Shanker ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gulam Rabbani

Counsel for the Respondents:
C.S.C.

A. Child Labour (Prohibition & Regulation) Act,
1986-Sec.3-Petitioner-found
guilty-vide
impugned order-for employing person below-14
years
of
age-denying
the
fact-petitioner
sumitted markssheet-aged around 18 yearssecs. 10 & 16- certificate granted by-prescribed
medical officer-to be conclusive proof-child
found to be 13 years old-as per medical
certificate-Petition Dismissed.

B. Held, In the instant case it is clear that the
prescribed authority has given his considered
opinion and indicated the age of the child to be
thirteen years and in light of Section 16 of the
Act of 1986, and the said age having been
determined by the prescribed authority shall be
a conclusive evidence as to the age of the
child. In the present case I am of the view that
the age determined by the prescribed Medical
Authority is thirteen years and therefore the
proceedings drawn against the petitioner under
the Act of 1986 clearly borne out. The
petitioner has setup a case with regard to a
person whose identity has been disputed. The
photograph of the person setup by the
petitioner does not match with the photograph
which was taken at the time of incident which
is also in the records of the respondents as well
as the certificate issued by the Chief Medical
Authority. In case such a stand was taken by
the petitioner regarding identity then onus will