V.K.BIST, J. - (1.) PRESENT petition has been filed by the petitioner challenging the order dated 03.03.2010 (annexure no. 5 to the petition) passed by the learned Addl. Chief Revenue Commissioner, Dehradun in Revision No. 104 of 2010 'Shri Vijay Pal Singh vs. Smt. Sheela and others'. Brief facts of the case, as narrated in the petition, are that on 16.11.2009 the petitioner instituted a Suit No. 27 of 2009-10 'Smt. Sheela vs. Shri Vijay Pal Singh and others', under Section 229-B of The Uttar Pradesh Zamindari Abolition And Land Reforms Act, 1950 (hereinafter referred to as the Act), before the Assistant Collector, 1 st Class, Vikas Nagar, Dehradun for declaring the petitioner as owner and in possession over the property in dispute (i.e. the land Khasra No. 1293 Rakba 0.1500 hectare situated in village Badama Wadla, Pargana- Pachawadoon, District Dehradun) on the basis of family settlement and also for mutating the name of the petitioner after cancelling the name of the respondents. Alongwith the said suit, the petitioner also moved an application for interim injunction under Section 229-D of the Act. It has been alleged in the petition that the respondent nos. 1 & 2 tried to grab the land of the petitioner, which petitioner has obtained through her inheritable rights after the death of her father late Sri Pooran, being his sole legal heir, on the basis of family settlement. The respondent nos. 1 & 2 always used to threaten the petitioner for selling the land in dispute to respondent no.2. They have also got entered their names in the revenue records, after executing a forged sale deed dated 22.06.2009. The respondent nos. 1 & 2 in furtherance to fulfill their aim, on 02.11.2009, came over the property in dispute and tried to dig foundation over the same and on restraining, they threatened the petitioner of dire consequences. It has been further asserted that after the death of her father, the petitioner also moved application before the Tehsildar, Vikas Nagar, for mutating her name in place of her father, which is pending for disposal. The learned Trial Court, after considering the case of the petitioner vide order dated 16.11.2009 registered the said suit and also granted interim order in favour of the petitioner/plaintiff restraining the defendant/respondent nos. 1 to 4 from raising any construction over the property in dispute. But the respondent no.1 instead of filing written statement and moving application for vacating the interim order dated 16.11.2009, preferred a Revision (bearing No. 104 of 2010 'Vijay Pal Singh vs. Smt. Sheela and others') before learned Addl. Chief Revenue Commissioner (for brevity ACRC) under Section 333 of the Act. The learned ACRC vide impugned order dated 03.03.2010 allowed the said revision preferred by respondent no.1 at the admission stage, without issuing notices to the petitioner and also without hearing to the petitioner and set-aside the order dated 16.11.2009 passed by the Trial Court. It has been further asserted that the respondent is trying to raise construction over the property in dispute and in the event, if the impugned order is permitted to be continued, the entire purpose of filing application for interim relief under Section 229D of the Act will be frustrated. Hence this petition.
(2.) THE respondent nos. 1 and 2, who are said to have been the main contesting parties, filed their counter affidavit stating therein that the suit under Section 229-B of the Act has been filed on 16.11.2009 subsequent to the suit for cancellation of sale deed which was filed on 05.11.2009. The respondents have a registered sale deed dated 22.06.2009 executed in their favour. It is stated that the petitioner admits that her name has not been recorded in the revenue records. It is stated in the counter affidavit that the order dated 16.11.2009 was beyond the ambit of Section 229-D of the Act and beyond the ambit of Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908. Further, against the grant of ex-parte injunction under Section 229-D of the Act, it is open to a party aggrieved either to pray for vacating of a stay order or have a recourse available under the law to approach the superior Court and filing of stay vacation or written statement is not a condition precedent for the purpose of filing of a revision under Section 333 of the Act and both the recourses are available to the defendant against whom the ex-parte injunction is granted. So far raising of construction is concerned, the case under Section 229-B of the Act is to be outside the purview of Chapter 8 because of the change of the use of land not being agricultural in nature, hence no injunction could have been granted. Apart from it, the suit under Section 229-B 4 of the Act itself deserves to be dismissed more particularly when the same is based upon the fact that the defendants are raising constructions over the land. It is further submitted that the order dated 16.11.2009 was rightly setaside by the ACRC while exercising powers under Section 333 of the Act as by virtue of Section 341 of the Act, the provisions of C.P.C. is made applicable to the proceedings under the Act, hence the ingredients and the limitations imposed by Order 39 Rule 1 and 2 C.P.C. will be applicable when the Trial Court is considering an application for grant of injunction under Section 229-B of the Act. I have heard Shri Ram Ji Srivastava, the learned counsel for the petitioner, Shri Sharad Sharma, Senior Advocate assisted by Shri Lalit Tewari, the learned counsel for respondent no.1, Shri R.C. Arya, the learned Brief Holder for the State/respondent no.5 and perused the record.
(3.) SHRI Ram Ji Srivastava, the learned counsel for the petitioner argued that the learned ACRC has allowed the revision mainly on the ground that the order passed by the learned Trial Court was ex-parte, as same was passed without giving sufficient opportunity of hearing to the parties. He argued that the observation of the learned ACRC is totally unsustainable in the eye of law as Section 229-D of the Act itself provides that if the Trial Court finds that the property in suit is in danger of being wasted or otherwise the Trial Court is satisfied that the same may be damaged by either of the parties, in that event the Trail Court, in order to defeat the ends of justice, may grant temporary injunction. Leaned counsel for the petitioner 5 referred Section 229-D of the Act which is being reproduced hereunder:- 229-D. Provision for injunction- (1) If in the course of a suit under the provisions of sections 229-B and 229-C, it is proved by an affidavit or otherwise- (a) that any property, tree or crops standing on the land in dispute is in danger of being wasted, damaged or alienated by any party to the suit; or (b) that any party to the suit threatens or intends to remove or dispose of the said property, trees or crops in order to defeat the ends of justice, the Court may grant a temporary injunction, and where necessary, also appoint a receiver.” ;