Puneeet Sharma vs Brij Bhushan Bansal & Others

The appellant before this court is a plaintiff in a suit for injunction wherein he has sought the decree of permanent injunction in relation to the

property, more particularly, defined in the foot of the plaint, which constitutes Khasra Nos. 163, 166, 243 & 244 having a total area of 1456 sq.

yards surrounded by the boundaries as given in the relief clause of the suit itself. The suit in question accompanied an application under Order 39

Rule 1 & 2.

The basis of the claim for grant of temporary injunction during the pendency of the suit, as agitated by the plaintiff/appellant before the court

below was that an agreement for sale has been executed by respondent no. 1 in favour of the appellant, though he admits the fact that the

agreement for sale which was executed on 15.6.2006 in his favour was an unregistered agreement for sale. On scrutiny of the agreement of sale

dated 15.6.2006, yet again it is revealed that the agreement for sale does not disclose any fact about handing over of possession to the plaintiff.

On the other hand, the arguments as extended by Mr. B.C. Pandey, learned Senior Counsel assisted by Mr. Ramji Srivastava, learned counsel

for the appellant is that he has questioned the title of the defendant (respondent herein) on the ground that the defendant, was claiming the right

over the property by virtue of the registered gift deed, executed by the attorney holder of the principal owner of the property, on the ground that

gift deed could not have been executed under the strength of attorney, because of the restrictions imposed by Section 152 A of U.P.Z.A & L.R.

Act, the attorney holder suffered from the vices of the restrictions imposed by Section 171, 173, 174 & 175 of U.P.Z.A & L.R. Act. The fact

remains and it is also admitted by the plaintiff/appellant before this court that the gift deed as executed in favour of the defendants (respondents

herein) was a registered piece of document. By virtue of the gift deed, name of the defendants admittedly have been recorded in the revenue

records.

Learned counsel for the appellants further submits that the findings recorded by this court in Writ Petition No. 620/2011 wherein relief sought

was for quashing of FIR as registered as Case No. 17 of 2011 which was sought by Mr. Brij Bhushan Bansal as lodged under Section 420/506

IPC at Police Station, Muni Ki Reti, District Tehri Garhwal. The observation made in the order passed by High Court which he tries to extract

from the order passed by this court for the purposes of substantiating the agreement for sale, and also to fortify the fact that he happens to be in

possession.

This court while exercising its power under Order 43 Rule 1 (V), while considering the propriety of the order dated 20.12.2017, rejecting the

application under Order 39 Rule 1 & 2 as preferred by the plaintiff/appellant before this court is ceased with a civil jurisdiction and any finding

recorded where a challenge is given to the FIR in the writ petition is only tentative in nature and the same cannot be borrowed for the purposes of

substantiating the possession in a civil proceedings. As any finding in criminal proceedings cannot be read in civil proceedings.

It is the case of the defendants/respondents is that the contention of the learned counsel for the appellant that the agreement for sale was

executed by the true owners is absolutely belied for the reason that the agreement was executed by Mr. Brij Bhushan Bansal, who is respondent

herein, who according to the defendant was not the true owner of the property nor the power of attorney holder.

The fact remains that the plaintiff/appellant has not been unable to establish before the court below that he is in possession except from the fact

stated in the pleadings which he has raised in the affidavit filed in support of an application under Order 39 Rule 1 & 2. Hence prima-facie this

court after scrutinizing the order impugned dated 20.12.2017 rejecting the application Paper No. 6-Ga did not find any error committed by the

learned Trial Court because the plaintiff/appellant has failed to prove his prima-facie case entitling him to be granted with temporary injunction.

At this stage, the learned counsel for the appellant expressed his apprehensions that in view of the finding recorded in the impugned order dated

20.12.2017 holding thereof that the defendant has acquired the title by virtue of gift deed executed in his favour. It may create difficulty for him

when the suit itself is decided on merits.

Though, this apprehension as expressed by the learned counsel for the plaintiff/appellant is pre-matured and unfounded but still looking to the

stage at which the said finding has been arrived at, this court holds that any finding pertaining to the title of the defendant on the basis of gift deed as

observed in the impugned order is only to be construed for the purpose of application under Order 39 Rule 1 & 2, which will only be tentative in

nature, without affecting the principal proceeding which has to be decided on the evidence to be adduced by the parties.

Subject to the above observations, the appeal fails and is accordingly dismissed.

No order as to costs.