- (1.) RAJESH Tandon, J. Heard Shri S. Aggarwal, counsel for the appellant standing counsel for the state and Shri T. Phartiyal, counsel for the re spondent nos. 3 to 6.
(2.) BY the present first appeal filed under Section 96 of Code of Civil Proce dure, the appellant has prayed for setting aside the judgment and decree dated 31. 03. 2004 passed by the Additional Dis trict Judge/ist Fast Track Court, Nainital. Briefly stated, a suit was filed by the plaintiff Amrik Singh praying for the permanent injunction restraining the de fendant from interfering with the posses sion of the plaintiff in respect of plot nos. 379 area 0. 608 Hect, 135 area 0. 405 Hect, 154 area 0. 202 Hect. According to the plaintiff, crops have been sown by him and the defendants are interfering with his possession. It has also been stated that on 22. 6. 1998, the subordinate employees of defendant nos. 1 and 2 entered into the plots of the plaintiff and damaging the crops. The employees of the defendant nos. 1 and 2 have threatened the plain tiff to dispossess him from the land in dis pute. The land in dispute is nazul land. The plaintiff has stated that he is in pos session of the land in dispute for the last 50 years. Prayer has been made that the defendants or their employees or agents be restrained from interfering with the posses sion of the plaintiff. The defendant nos. 1 and 2 have filed the written statement denying the averments made by the plaintiff. It has been submitted that the khasra nos. 379, 135 and 154 of village Rudrapur, Tehsil Kichha, District Udhamsingh Nagar are within the boundary of Nagar Palika, Rudrapur. The land in dispute is the nazul land and is in the possession of the de fendant no. 2. The plaintiff is neither in the possession of the land in dispute nor he is the owner of the same. In paragraph 9 of the additional pleas, the defendants have stated as under : Hindi 5. The defendant nos. 3 and 4 have also filed there written statement. They have denied that the plaintiff was in pos session of the land in dispute. It has been submitted that the land in dispute is nazul land and is within the boundary of the Nagar Palika. It has also been submitted that the plot no. 22 area 426 sq. metre was executed in favour of defendant no. 3 Pawan Kumar and plot no. 23 area 476 was executed in favour of Dinesh Kumar by Uttar Pradesh Government on the ba sis of registered sale deed. It has been sub mitted that they arc In possession of the said plots since 23. 6. 1998. It has also been submitted that the suit of the plain tiff is barred by the provisions of Order 7 Rule 11 of Code of Civil Procedure. 6. The defendant nos. 5 and 6 have also filed their written statement. It has been submitted that Smt. Mamta Madan has purchased the land khasra nos. 30 and 31 from State of U. P vide registered sale deed dated 23. 6. 1998. It has been prayed that the suit of the plaintiff is li able to be dismissed having been filed on the basis of wrong facts. 7. On the pleadings of both the par ties, following issues have been framed : Hindi 8. On behalf of the plaintiff paper no. 11 ga Ex. 1. paper no. 12 copy of khasra document village Rudrapur Ex. 2, paper no. 13 ga i. e. water receipt Ex. 3, paper no. 26 ga 2 to 26 ga 10, paper nos. 29ga/ 2 to 29 ga/5 have been filed. In addition to these, the plaintiff has also filed paper nos. 220 ga/2 to 220 ga/12 which are irrigation receipts from Rudrapur Canal. 9. On behalf of the defendant Nagar Palika has filed Paper nos. 33 ga/1 to 33 ga /3, paper nos. 34 ga /i to 34 ga/2, pa per nos. 35 ga/1 ka 35 ga/14, paper nos. 36 ga /i to 36 ga/ 11, paper nos, 37 ga, paper no. 38 ga/1 to 38 ga/2, paper nos. 39 ga/1 to 3 ga, paper nos. 42 ga, paper nos. 43 ga/1 to 43 ga/4, paper nos. 44 ga to 44. ga/3, paper nos, 44 ga a/1 to 44 ga a, paper nos. 45 ga/1 to 45 ga/3, pa per nos. 46 to 73 ga, paper nos. 74 ga/1 to 74 ga/2 have been filed. Paper nos. 78 ga/1 to 78 ga/9, paper nos. 79 ga/1 to 79 ga/6, paper no. 81 ga/3 i. e. Ex. 50, paper no. 82 ga Ex. Ka 49, paper no. 83 ga Ex. Ka 48, paper no. 84 ga Ex. Ka 47, paper no. 85 ga Ex. ka 46, paper no. 86 ga Ex. Ka 45, paper no. 87 ga Ex. Ka 43, paper no. 88 ga Ex. Ka 42, paper no. 89 ga Ex. Ka 41, paper no. 90 ga Ex. Ka 40, paper no. 91 ga Ex, Ka 39, paper no. 92 ga paper no. ka 38, paper no. 93 ga Ex. Ka 36, paper no. 94 ga Ex. Ka 35, paper no. 95 ga Ex. Ka 34, paper no. 96 ga Ex. ka 32, paper no. 97 ga Ex. ka 33, paper no. 98 ga Ex. ka 31, paper no. 99 ga Ex. ka 29, paper no. 100 ga Ex. ka 28, paper no. 100 ga/2 Ex. ka 27, paper no. 101 ga Ex. ka 26, paper no. 102 ga Ex. ka 25, pa per no. 103 ga Ex. ka 24, paper no. 104 ga/1 to 104ga/ll have also been filed by the defendant. The defendant, Nagar Palika, Rudrapur has also filed paper nos. 81ga/l to 109ga/l to 109 ga/3 as Ex. ka 11, paper nos. 110ga/l to 110 ga/2 Ex. ka 13, paper nos. lllga/1 to 111 ga/2 Ex. ka 12. 10. In addition to the above docu ments, the defendants have also filed the free hold deed dated 7. 7. 1998 executed in favour of Dinesh Kalara, Free Hold Deed dated 7. 7. 1998 executed in favour of Dheeraj Madan, Free Hold Deed dated 6. 7. 1998 executed in favour of Mamta Madan and Free Hold Deed dated 7. 7. 1998 executed in favour of Pawan Kumar. Besides these documents, certified copy of map i. e. paper no. 205 ga Ex. ka 5, paper nos. 211 ga/1 to 211/5 Ex. ka 30, paper nos, 212 ga/1 to 212 ga/5 Ex. ka 37, paper nos. 213 ga/1 to 213 ga/5 Ex. ka 44, paper nos. 214 ga/1 to 214 ga/ 4 Ex. ka 51 and paper nos. 215/5 have also been filed. 11. On behalf of the plaintiff, P. W. 1 Richpal Singh has been examined who has deposed that towards the East of the land of Amrik Singh there is workshop of Gurdeep Singh, towards the West there is ice factory, towards the North, there is Kichha Bypass and towards the South, rice mill of Pashupati is situated. He has also deposed that he has not seen any one except Amrik Singh on the land in dispute. 12. P. W. 2 Pradhan Singh has de posed that the land of Amrik Singh is near the ice factory. This plaintiffs witness has also corroborated the deposition of P. W. 1 with regard to the 'chauhaddi' of the dis puted land. It has also been deposed that; Amrik Singh was doing cultivation on the land in dispute. 13. The plaintiff Amrik Singh himself has examined as R W. 3, who has proved paper no. 11 ga which is pass book relat ing to the irrigation department. Ex. 2 i. e. paper no. 12 ga is khasra document and Ex. 3 i. e. water receipt have also been proved by the plaintiff. 14. D. W. I Bharat Lal has deposed that plot nos. 379,135 and 158 are nazul land of the State Government and under the boundary and control of Nagar Palika. The plaintiff was never in possession of the said land. Defendant nos. 5 and 6 are in possession of some part of plot no. 379. It has also been deposed that the land which are not recorded in free hold are in possession of the Nagar Palika. 15. D. W. 2 Abdul Khalik has also de posed that the plot nos. 379, 135 and 154 of Rudrapur village are nazul land. He has also deposed that the nazul plots of khasra no. 379 have been allotted by way of bid and the registered sale deeds have been issued to the purchasers of plot nos. 22 to 24 and 29 to 31. 16. D. W. 4 Dheeraj Madan has also appeared on behalf of the defendants who has deposed that he has purchased plot no. 31 from the Government of U. R and his wife Mamta Madan has purchased plot no. 30 by way of bid. The possession of both the plots was given on 23. 6. 1998 and since then they are in possession of aforesaid plots. 17. D. W. 5 Devendra Shahi has de posed that four plots which are situate at khasra no. 379 have been purchased by Pawan Kumar, Dinesh Kalra, Mamta Madan and Dheeraj Madan from the State Government by way of registered sale deed, He has deposed that rest of the land is in the possession of Nagarpal and in the ownership of Government. He has also deposed that all the four allottees are in possession of their respective plots and the plaintiff was never in possession of the same. 18. While deciding issue nos. 1 and 2, the trial court has recorded the findings to the following effect : Hindi 19. On the basis of above findings, the trial court has dismissed the suit and observations have been made by the trial court that till the plaintiff gets his rights decided by competent court, the plaintiff is not entitled for any permanent injunc tion. 20. Counsel for the respondent Shri Sandeep Tandon has brought to the no tice of the Court with regard to the order passed by the Allahabad High Court in writ petition no. 2214 of 1998. 21. On the strength of the order passed by the Allahabad High Court, counsel for the appellant has submitted that it was a simplicitor suit for injunction in order to restrain the defendant from interfering with possession of the plaintiff till the suit for title is decided. 22. Counsel for the respondent has vehemently urged that since it was a nazul property, the same has been sold out to various purchasers and the plaintiff has no concern with the same. On the other hand, the witnesses on behalf of the plain tiff have stated that the plaintiff contin ues to be in possession, 23. In view of the aforesaid, in case the plaintiff is still in possession, he shall not be dispossessed except in accordance with law. However, so far as the claim for title is concerned, it will be open for the plaintiff to file the suit in the competent court for declaration of his title. 24. Subject to the observations made above, the appeal lacks merit and is dis missed. .;