- (1.) The appellant through this appeal has challenged the order dated 27.9.2011 passed by the Civil Judge (Senior Division), Lucknow.
(2.) The facts in respect of the present dispute are that Raza Mohammad Ali Mohammad Khan of Mahmoodabad Estate was recorded as tenure holder (Bhumidhar) of Khasra Plot No.380, area 3 bigha 18 biswa, situated in village Sheikhapur, Pargana, Tehsil and District Lucknow. Name of Late Maharaj Kumar Mohammad Mahmood Hasan Khan was continuously recorded in revenue record of 1356 fasli, 1359 fasli, 1362 fasli, 1365 fasli, 1370 fasli to 1372 fasli, 1375 fasli to 1378 fasli, 1401 fasli to 1406 fasli and the title of ownership of the land was not put to challenge by anybody at any point of time. The original recorded tenure holder, namely, Maharaj Kumar Mohammad Mahmood Hasan Khan (for short "Mahmood Khan") died on 11.5.1993 and after his death, name of the appellant on the basis of his last registered will dated 2.3.1990 was recorded in the revenue record vide order dated 3.10.1993 passed by the Tehsildar under Section 34 of the U.P. Land Revenue Act in case no.178/509. Nagar Mahapalika admittedly issued acquisition notice under Section 357 of the Uttar Pradesh Nagar Mahapalika Adhiniyam (for short "the Adhiniyam") in the year 1962 and thereafter information was given to all the recorded tenure holders about the acquisition of their plots. The Special Land Acquisition Officer had issued an Ittilanama/possession demand letter to all the acquired/owners and in pursuance thereof an Ittilanama was issued to the predecessor of the appellant demanding possession of the acquired plots in which Khasra No.380 of Village Sheikhapur was not mentioned. After the acquisition, in the year 1995 respondent no.2 along with some officials of respondent no.1 illegally tried to interfere in the peaceful possession of the appellant, then his mother late Smt. Iqbal Jahan Begum and the appellant preferred a suit for permanent injunction in Civil Court, Lucknow which was registered as Regular Suit No.475 of 1995 and an injunction order was passed in favour of the plaintiffs therein. The said injunction order continued during pendency of the appeal; after dismissal of the suit and appeal, in Special Leave Petition also, but ultimately Special Leave Petition was dismissed giving liberty to the appellant to file declaratory suit seeking declaration in respect of ownership. In pursuance to the liberty given by the Hon'ble Supreme Court, the appellant proceeded to file the regular suit for declaration and along with the suit for declaration, an application for injunction was also moved under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The trial court considered the application moved on behalf of the appellant and proceeded to reject the injunction application finding that the land in question was acquired by means of boundaries and the boundaries indicated the area comprised within those boundaries to be acquired. The said acquisition was made subject matter of award dated 31.12.1979 and award dated 11.4.1977. It was also found by the trial court that the sale deed was executed by the father of the appellant to various persons by launching a housing project. The said persons also claimed compensation on the basis of the sale deeds, but the Land Acquisition Officer instead of granting any compensation referred the matter to the Nagar Mahapalika Tribunal (for short "the Tribunal") for declaration of their claim. The sale deeds were executed by the father of the appellant to the extent of 2 bigha 10 biswa 9 biswansi and 2 kachwansi to the various persons in the year 1959 and they became owner of the plots in question on the basis of the aforesaid sale deeds. The remaining 1 bigha 7 biswa 10 biswansi and 18 kachwansi was also acquired by the respondents under Section 357 of the Adhiniyam. Both the awards were rendered separately and the mother of the appellant received compensation in respect of the first award dated 11.4.1977. The notification which was put to challenge by way of Writ Petition No.137 of 1974 was dismissed by this Court by means of judgment and order dated 18.2.1977 and the Hon'ble Supreme Court also dismissed the SLP and the acquisition has attained finality. The trial court did not find any favour with the appellant finding that the land in question did not belong to the appellant and if any entry was existing in the Khetauni, then that will not confer any right in favour of the appellant. The trial court proceeded to reject the application for injunction. Against the aforesaid order, the present appeal has been preferred.
(3.) Submission of counsel for the appellant is that the land of Khasra No.380 has never been acquired and right of the appellant remains intact in respect of Khasra No.380. The trial court has conducted mini trial which is not permissible under law in view of the decision rendered by the Division Bench of this Court in earlier round of litigation in FAFO No.1456 of 2010 by means of order dated 1.8.2011. Further submission is that the property belongs to the appellant and as such, injunction should have been granted in favour of the appellant. It is also submitted that in earlier round of litigation when injunction suit was filed injunction was continuing in the trial court and in this Court as well as before the Hon'ble Supreme Court and therefore, the injunction ought to have been granted by the trial court instead of rejecting the injunction application. Learned counsel has laid much stress upon the map which was filed before the trial court to indicate that the cross has been made in respect of plot no.380 and therefore, the cross indicates that the land in question has not been acquired. Certain Khetaunies have also been filed and relied upon to say that the name of the appellant is continuing as owner and therefore, title of the appellant cannot be doubted and as such, prima facie case and balance of convenience lies in favour of the appellant.;