MOHD FIROZ Vs. ATAULLAH

JUDGEMENT

(1.) Respondent has filed Original Suit No. 115 of 2010 against the petitioner. Alongwith the plaint application for temporary injunction was filed by the plaintiff. Civil Judge (Senior Division), Sonebhadra refused to grant temporary injunction to the plaintiff respondent through order dated 27.9.2010. Against the said order plaintiff-respondent filed Misc. Civil Appeal No. 33 of 2010. Appeal has been allowed through order dated 13.7.2012 by District Judge, Sonebhadra. The said order has been challenged through this writ petition. Learned Counsel for the petitioner states that plaintiff was permitted to reside in a part of the accommodation in dispute by the defendant only as a licencee as he was relation of defendant-petitioner's ancestors. The Lower Appellate Court has directed that plaintiff shall not be evicted during pendency of the suit from the portion shown to be in his possession in the Amin's report and petitioner defendant has been restrained from selling any part of plot Nos. 1173 and 1174.

(2.) In my opinion as plaintiff was in possession hence at least he was entitled to the temporary injunction against forcible eviction. Accordingly, I do not find any error in the said part of the order. However, as far as question of restraining the defendant from selling any part of plot Nos. 1173 and 1174 is concerned, the Lower Appellate Court should have restrained both the parties. Accordingly, that part of the order passed by the Lower Appellate Court is modified and it is directed that both the parties are restrained from transferring any part of plot Nos. 1173 and 1174 during the pendency of the suit. This direction is being issued without issuing any notice to the respondent. If he feels aggrieved by it he is at liberty to apply for its recall.

(3.) Learned Counsel for the petitioner has expressed apprehension that the findings recorded in the order dated 13.7.2012 by the District Judge may jeopardise his case in the suit. It is clarified that while deciding the suit Trial Court shall not take into consideration the findings recorded in the impugned order by the Lower Appellate Court.