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2006 Supreme(All) 1434
[2006(5) ADJ 469 (DB)]
ALLAHABAD HIGH COURT
(Division Bench)
BEFORE : A.K. YOG AND B.B. AGARWAL, JJ.
ANWAR HUSAIN AND OTHERS ....Petitioners
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 10815 of 2000, decided on 10th May, 2006)
Counsel :
Miss Shaukat Siddiqui, Mrs. Sadhna Upadhyaya, Rudreshwari Prasad, Arvind Kumar Shukla, K.N. Shukla for the Petitioners; S.M.A. Kazmi, Sameer Sharma, Pradeep Kumar, Sheshadri Trivedi, S.C., for the Respondents.
Headnote:(A) Injunction—Waqf property—Adverse possession—Eviction of petitioners from premises in question—Refusal by trial Court to grant ex parte interim injunction—But it directed to issue notice to defendants—A.D.J. dismissed revision of petitioner—And directed to trial Court to decide that application—Writ petition against—On basis of Ration Card, Voter List, Receipt of House and Water Tax, Electricity Bills, etc., those persons claimed to have been in possession, on basis of permission given by Waqf Board—They were claiming “adverse possession” on that very evidence in original suit, giving rise to instant writ petition—Plaintiffs failed to plead necessary facts constituting essential ingredients to establish their title by “adverse possession”—In absence of necessary pleadings, plaintiffs cannot claim “decree”, on ground of “adverse possession”—Instant suit was based on concocted/frivolous pleadings—And same was “afterthought”—None of aforesaid documents showed that their possession was “hostile”, or “adverse” to title of true owner, i.e., defendants—Plaintiffs-petitioners do not have a "prima facie" no case on merit—Plaintiffs-petitioners were guilty of fraud—Therefore, Original suit and petition liable to be dismissed with costs of Rs. 10,000—Impugned order of Courts below refusing ad interim injunction was affirmed. [Civil Procedure Code, 1908—Order XXXIX, Rules 1 and 2]. [Paras 16, 41, 42, 47, 52, 53, 57, 75, 77, 78, 81 and 82]
(B) Code of Civil Procedure, 1908—Section 11—Res judicata—Decision in earlier writ petition/case on merit—To operate as “res judicata” in subsequent proceedings. [Para 58]
(C) Injunction—Discretionary remedy—Cannot be claimed as of right—But a discretionary relief, and not a right—Court can refuse to grant, on ground of conduct of plaintiff, or for other reasons, which may be expedient in interest of justice and equity. [Para 59]
(D) Code of Civil Procedure, 1908—Order I, Rules 1, 2, 3—Necessary party—Petitioners/Plaintiffs, did not implead U.P.S.R.T.C. with an ulterior motive/oblique purpose deliberately to linger on litigation, as they had an ex parte interim order in their favour—Therefore, petition liable to be dismissed on ground of non-impleadment of necessary party. [Para 74]
(E) Code of Civil Procedure, 1908—Section 35—Costs—Abuse of process of Court of law—Petitioners/Plaintiffs did not implead a necessary party with an ulterior motives and oblique purpose, deliberately to linger on litigation, as they had an ex parte interim order in their favour—Court imposed a cost of Rs. 10,000/- on petitioners/plaintiffs. [Paras 74, 82 and 83]
Hon’ble A. K. Yog, J.—Heard learned Counsel appearing for respective parties. Also perused the record of the above mentioned writ-petition.
2. The above writ petition was directed (see Court orders dated 19.3.2002, 27.7.2005 and 1.9.2004 on the order-sheet of the case) to be listed along with the record of the following writ petitions:
(1) Writ Petition No. 32401 of 1998 - Syed Shah Khursheed Ahmad
Hashmi v. D.M. Allahabad and others, (decided vide Judgment and order dated 12.10.1998 passed by Palok Basu and I. M. Quddusi, JJ.
(2) Writ Petition No. 44517 of 1998, Syed Shah Khursheed Ahmad Hashmi v. State of U.P. and others, (decided vide Judgment and order dated 16.12.1999 passed by A. A. Desai and Onkeshwar Bhatt, JJ.)
(3) Writ Petition No. 5071 of 2000, Mohd. Rais and 4 others v. State
of U.P. and others, (decided vide Judgment and order dated 31.1.2000 passed by O.P. Garg and S. K. Jain, JJ.)
3. Reference shall be made to the above three writ-petitions at appropriate place while dealing with the merits of the above Writ Petition in hand.
FACTS OF THE CASE :
4. Anwar Husain and 36 other persons, as contemplated under Section 80, Code of Civil Procedure, served notice dated June 8, 1999 upon the State Government. Relevant extract of the notice reads :
1. That my aforesaid clients have constructed their residential house over the portion of Nazul plot No. 13, Civil Station, Allahabad within the compound of 2, Nawab Yusuf Road, Allahabad and they all are occupying their residential houses for the last 40 years as they have constructed the same openly and adversely, within the knowledge of the Govt. and District Administration and Administrator and no objections were raised by either you noticee or by your official.
2. That the employees and subordinates of you noticee threaten to demolish the constructions belonging to my aforesaid clients with intention to evict them and hence the present noticee is being given to you under Section 80 C.P.C to the effect that you noticee may not demolish the constructions belonging to my aforesaid clients lying over the said plot No. 13, Civil Station, Allahabad in any manner and kindly settle the matter amicably. I, therefore, call upon you through this notice that you noticee may not demolish the said constructions belonging to my aforesaid client in any manner otherwise my aforesaid clients shall file a suit for permanent injunction on the basis of the cause of action arose to them as you noticee threatened to demolish the construction. The relief sought in the suit shall be as follows. The Govt. their agents, servants and employees may be restrained by means of permanent injunction from demolishing the constructions belonging to the above mentioned clients in any manner lying over portion of 13, Nazul Plot Civil Station, within compound of 2, Nawab Yusuf Road, Allahabad in any manner.” (Italicised to lay emphasis)
5. After eight months of giving under Section 80, C.P.C. Notice, Plaint (verified on 8.2.2000) along with an interim injunction application (6 Ga) supported by an affidavit sworn by Mohd. Ismail, was filed in the Court of Civil Judge (Junior Division-West) Allahabad. It was registered as Original Suit No. 188 of 2000-Anwar Hussain and others v. State of U.P & Ors. The Plaintiffs, inter alia amongst others, alleged that they are in peaceful possession of their respective portions in the disputed premises—known as Yusuf Manzil, 2 Nawab Yusuf Road, Allahabad—situate over Nazul plot No. 13, Civil Station, Allahabad, measuring more than two acres of land, hereinafter called the ‘premises in question ; that they have raised residential/commercial constructions 40 years ago over certain portions of the said premises; that by virtue of alleged possession they have acquired and matured title by ‘adverse possession, and on that basis prayed for a decree of permanent injunction to restrain the Defendant/s from interfering in their peaceful possession or demolishing their construct
