Usha Devi vs Distt.Judge, Bahraich and others

K.S. Varma, J.

An application for issue of temporary injunction was rejected by the two courts below and against the order of the appellate court dated 23.8.1978 the instant writ petition has been filed. From a perusal of the order of the appellate court it appears that the District Judge maintained the rejection order passed by the trial court on the ground that there was no documentary or oral evidence to prove that the disputed property belonged to Pyare Lal. This statement in the Judgment appears to be incorrect as the trial court had referred to a copy of the Judgment passed by the Assistant Collector, Bahraich, holding that Smt.Maya Devi is not the wife of Pyare Lal. It has been observed By the trial court that an appeal is pending against that decision and on that basis held that there was no final decision establishing the title of the petitioner on the basis of which the claim of Smt. Maya Devi may be discarded. The question whether the plaintiff is the heir of Pearey Lal appears to have been adjudicated upon by the Assistant Collector and if an appeal against the said decision has been preferred, the trial court or the appellate court should have enquired about the decision in the said appeal. In the face of paper no. C27 referred to in the trial court''s Judgment, the finding of the appellate court that there is no documentary or oral evidence to prove that the disputed property belongs to Pearey Lal appears to be incorrect. This incorrect observation appears to have been occasioned on account of failure to peruse the record and has resulted in the dismissal'' of the appeal. Since the material evidence which was on record has not been taken into consideration the order dated 23.8.1978, Annexure4, deserves to be quashed.

For the reasons stated above, the orders Annexure3 dated 163.78 and annexure4'' dated 23.8.1978 passed by the appellate court are set aside. The Munsif, Bahraich will reconsider the application under order XXXIX Rule 1 C.P.C, moved by the plaintiff, afresh, after affording the parties an opportunity to lead such evidence as is relevant to ascertain the primafacie title of the plaintiff. The parties are directed to appear before the Munsif, Bahraich on 15th April, 1983. The office is directed to transmit the record of the case well in advance so that the same may be available to the trial court on 15th April 1983.

(Petition allowed)