SEHKARI MATSYA NIDHI SAMITI Vs. KUSHAL PAL
LAWS(UTN)-2012-4-44
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
Decided on April 24,2012

Sehkari Matsya Nidhi Samiti Appellant
VERSUS
Kushal Pal Respondents

JUDGEMENT

- (1.) Instant second appeal has been filed against the judgment and dd cree dated 08.12.2010 passed by Addl. District Judge/1st Fast Track Court, Roorkee in Civil Appeal No. 29 of 2009 as well as the judgment and decree dated 27.11.2009 passed by Civil Judge (Sr. Div.), Haridwar in Original Suit No. 60 of 2004.
(2.) Brief facts, leading to the appeal, are that the plaintiff/respondent No. 1 instituted a suit for prohibitory injunction against defendants (respondent Nos. 2 to 4 herein), inter alia on the ground that for the pond situated in Khasra No. 124 admeasuring 3.323 hectare within village Chudiyala, Mohanpur, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar a proclamation was done on 01.10.2003 and accordingly, a resolution was passed on 08.10.2003 by the Land Management Committee for auctioning the pond on lease to the community belonging to fishermen community. Being the highest bidder, the land was auctioned in favour of the plaintiff and, accordingly, vide order dated 27.11.2003, a registered lease deed was executed by Sub-Divisional Magistrate/defendant No.2 in favour of the plaintiff. The plaintiff had deposited the requisite fee and all the money. It has been alleged in the plaint that the respondents are interfering in the functioning of the plaintiff and on 12.03.2004 the Sub-Divisional Magistrate, Roorkee has stopped fisheries in the pond. During the proceeding of the suit, the appellant herein impleaded as defendant No.4 in the suit. The defendant Nos. 1 to 3 filed their reply to the amended clause of the plaint with the averment that the plaintiff has not specified any cause of action; no notice under Section 80, C.P.C. has been given prior to instituting the suit; relief sought in the suit can only be granted by the Revenue Court; Civil Court has no jurisdiction to try the suit; after granting lease, the District Magistrate vide order dated 29.05.2004 stayed the sanction of the lease and the suit is barred under Sections 38 and 41 of the Specific Relief Act. The defendant No.4 (appellant herein) filed his written statement with the averment that the ponds, whose area is more than that of 2 hectares, can only be allotted to a Sehkari Matsya Samiti and cannot be allotted to an individual. The defendant No.4 further asserted in the written statement that Matsya Jeevi Sehkari Samiti, Ltd., Rookee was in existence in Nyay Panchayat, Vikas Khand, Tehsil area Roorkee since 23.11.1995, which was competent/eligible for the allotment of disputed pond. It was averred in the written statement that admittedly, the plaintiff is a person and not the society registered and he was not entitled for the allotment of the pond due to the existence of the registered society.
(3.) The matter in issue and case before the trial Court was regarding the allotment of pond of more than two-hectare area and Govt. Order dated 04.01.1994, regarding the allotment of ponds of various areas is in force, which was required to be followed, which specifically provides that ponds of more than two hectares area can be allotted only to the registered society of fishermen community of concerned village, where the pond is situated and in its absence, to a registered society of Nyay Panchayat, Vikas Khand and in absence of these, to the member of fishermen community. After framing necessary issues, the parties adduced their oral and documentary evidence in support of their contentions. The learned trial Court vide impugned judgment and order dated 27.11.2009 decreed the suit for prohibitory injunction instituted by the plaintiff/respondent No.1. Against the said order, the appellant preferred Civil Appeal No. 29 of 2009 and the defendant Nos. 1, 2 & 3 also preferred Civil Appeal No. 1 of 2010 before the District Judge, Haridwar, which were lateron transferred to the Court of Addl. District Judge/1st Fast Track Court, Roorkee, who vide impugned judgment dated 08.12.2010 dismissed both the appeals and affirmed the order of the trial Court passed on 27.11.2009. Aggrieved with these orders, present second appeal has been filed.;


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