S.P.Srivastava, K.N.Sinha - (1.) -The appellant-plaintiff feeling aggrieved by the order passed by the trial court rejecting an application seeking an ad interim injunction in terms of the decree sought for has now come up in appeal before this Court seeking redress praying for the reversal of the impugned order and the grant of the interim injunction, as prayed for.
(2.) WE have heard the learned counsel for the appellant and have carefully perused the record. The plaintiff-appellant claimed to have purchased an area of 200 sq. yards of khasra plot No. 6/1 on which a kothari of 18 sq. yards had been built. The sale deed for the aforesaid house was executed in favour of the appellant by Smt. Dayawati on 23.1.1987. The plot No. 6/1 is situate in village Mohammadpur Dedha, Pargana Jalalabad, Tehsil and district Ghaziabad. It is not disputed that initially the Gaon Sabha had executed a patta for residential purposes in respect of the aforesaid land in favour of the predecessor-in-interest of Dayawati. This patta is said to have been executed in the year 1979. It may further be noticed that it is also not disputed that vide the notification dated 30.8.1983, the plot No. 6 along with its sub-divisions and several other plots were brought within the territorial limits of Nagar Palika, Murad Nagar, w.e.f. 1.9.1983. As contemplated under the rules framed under the U. P. Panchayat Raj Act, 1947 as contained in Rule 3AAA the jurisdiction of the Gaon Sabha concerned to the extent of the area included within the limit of Nagar Palika ceased and got reduced to that extent and the said plot stood transferred to the local body within the limits whereof the area was included. Proceedings for the eviction of the plaintiff and delivery of the possession of the land in dispute was initiated under Section 122B of the U.P.Z.A. and L.R. Act. The proceeding was initiated against the plaintiff-appellant by the Nagar Palika. In the aforesaid proceedings, the revising authority while allowing the revision of the Nagar Palika vide the judgment and order dated 15.6.2001 had directed for the eviction of the plaintiff and delivery of possession of the land in dispute to the Nagar Palika. Subsequent to the order passed by the aforesaid authority, the plaintiff filed the suit praying for a decree of permanent injunction restraining the defendant from interfering in any manner with the possession of the plaintiff over the house constructed on the land in dispute.
(3.) THE trial court after considering the affidavits exchanged between the parties and the evidence brought on the record up to that stage, came to the conclusion that since the plaintiff could have approached the Board of Revenue for the relief against the order passed by the revising authority, the Collector directing his dispossession from the property in dispute, there could be no justifiable ground for granting the temporary injunction in view of the provisions contained in Section 41 (h) of the Specific Relief Act. It was held that the plaintiff had not claimed any relief in respect of his title as envisaged under Section 122B (4D) of U.P.Z.A. and L.R. Act, 1950 and in view of that matter also, there could be no justification for nullifying the order passed by the competent authority, the Collector while exercising the exclusive jurisdiction vested in him under the provisions of Section 122B of the U.P.Z.A. and L.R. Act. Apart from the aforesaid grounds, the trial court further found that the plaintiff could not be held to have been successful in establishing a case where injunction in terms of the final relief claimed in the suit deserved to be gra 6. In the facts and circumstances of the present case, it may be observed that while dealing with the suit, the trial court observed that the order passed in the proceedings under Section 122B of the U.P.Z.A. and L.R. Act was subject to the regular suit but the suit contemplated under the aforesaid provision is a suit as envisaged under the provisions of the U.P.Z.A. & L. R. Act regarding declaration of title. In the present case, it is further apparent that the rights flowing from the patta in respect of a residential plot which is claimed to have been executed in favour of the predecessor-in-interest of Dayawati were of a limited nature and were not transferable inter vivos. The plaintiff, therefore, could not derive any title through the sale deed executed in favour of the appellant by Dayawati in the year 1987. The learned counsel for the appellant has tried to urge in this connection that by virtue of his possession, the plaintiff and his predecessor-in-interest had matured title in respect of the land in dispute and that could be transferred in favour of the plaintiff. In this connection, suffice it to say, that there was no such jural relationship between Dayawati, her vendee and the plaintiff which could permit in law the clubbing of the periods of possession for the purposes of making any title.;