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IN THE HIGH COURT OF ALLAHABAD
Saral Srivastava, J.
Sadare Alam And Others - Petitioner
Vs.
Ram Awadh And Others - Respondent
Matters Under Article 227 No. - 636 of 2021
Delivered On : 25-07-2022
Transfer of Property Act, 1882 - Section 106 - Specific Relief Act, 1963 - Section 6 – Constitution of India, 1950 - Article 227 - Property - Excavate Mud - Temporary Injunction - Lease - Whether permission granted by petitioners-plaintiffs to respondents-defendants is a lease or not – Held, This Court prima facie find that permission being termed as 'lease' by respondents-defendants is not a lease, hence, contention of learned counsel for respondents that respondents became tenant by holding over lacks substance - It is also pertinent to mention that excavation of mud and soil from suit property and running of brick-kiln business on suit property may also seriously damage yield of crop over suit property and will make land non-agricultural land which cannot be compensated in terms of money - Perusal of judgement of appellate court reveals that it has not upset finding returned by trial court while granting injunction, and accordingly, for this reason also, order of appellate court is not sustainable - Thus, for reasons given above, this Court finds that order of appellate court is not sustainable in law, and accordingly, it is set aside - Respondents-defendants are restrained from running brick-kiln business over suit property – Petition allowed.
Key Points: - The permission dated 28.11.2019 is prima facie not a lease since it lacks premium or rent and does not recite consideration (!) . - The appellate court erred in holding that Section 106 notice was mandatory before instituting the suit since no valid lease exists (!) . - The trial court found a prima facie case, balance of convenience in favor of petitioners, and that irreparable loss would occur if the brick-kiln and excavation continued; appellate court reversed (!) (!) (!) . - The document granting rights on 28.11.2019 is described as permission, not a lease; thus respondents cannot be treated as tenants by holding over (!) . - The court held that excavation and running a brick-kiln would damage agriculture and land fertility, justifying interim relief in favor of petitioners (!) (!) . - The final order sets aside the appellate court’s decision and restrains the respondents from running brick-kiln business on the suit property (!) . - The court directs expeditious disposal of the suit with possible costs for adjournments if necessary (!) .
JUDGMENT :
Saral Srivastava, J.
1. Heard Sri Anil Bhushan, learned Senior Advocate assisted by Sri P.N. Tiwari, learned counsel for the petitioners, and Sri Shiv Om Vikram Singh Chauhan, learned Senior Advocate assisted by Sri Vishnu Gupta, learned counsel for the respondents.
2. The petitioners are plaintiffs in Original Suit No.2314 of 2020 and have assailed the order dated 20.01.2021 passed by the District Judge, Azamgarh, allowing the appeal of respondents-defendants (first set) by which appellate court has set aside the order dated 22.12.2020 passed by the trial court granting the temporary injunction to the petitioners-plaintiffs.
3. The petitioners-plaintiffs instituted Original Suit No.2314 of 2020 restraining respondents-defendants (first set) (respondent nos.1 & 2 in the writ petition) not to interfere in the possession of the petitioners-plaintiffs, and further respondents-defendants (first set) be restrained from raising any construction over the suit property and not to excavate mud from the suit property i.e. Arazi no.606 area 1.5440 hectare shown as ‘ABCDEFGH’ in the map at the foot of the plaint.
4. The suit has been instituted on the ground that petitioners-plaintiffs and respondents-defendants (second set) are the joint owners of the suit property, and the suit property has not been partitioned between the petitioners-plaintiffs and respondents-defendants (second set) by metes and bounds. It is stated that on the north side of the suit property, a brick kiln (Bhatta) was being run by the respondents-defendants (first set). It is further pleaded that respondents-defendants (first set) have no concern with the suit property. The respondents-defendants (first set) are Bhu-mafias and have been threatening the petitioners-plaintiffs since 14.11.2020 to excavate mud from the suit property and dispossess them. The said action of the respondents-defendants (first set) gave the cause of action to the petitioners-plaintiffs to institute the aforesaid suit. In the said suit, petitioners-plaintiffs also filed 6C-2 application praying for a temporary injunction.
5. The respondents-defendants (first set) filed an objection to the temporary injunction application stating therein that they are in possession of the suit property. It is stated that on account of the Pandemic of COVID-19, the raw material of the respondents-defendants (first set) namely, coal, mud, sand, etc. were lying on the suit property. It is further stated that petitioners-plaintiffs have issued a licence in favour of the respondents-defendants (first set) to run a brick kiln which is still in existence. It is further stated that on account of closure of brick-kiln, respondents-defendants (first set) are suffering a loss of Rs.1 lakh per day. It is further pleaded that no prima facie case and balance of convenience are in favour of the petitioners-plaintiffs and it is respondents-defendants (first set) who shall suffer irreparable loss if they are not allowed to run brick-kiln.
6. The trial court vide order dated 20.11.2020 granted an ex-parte order of status quo restraining the respondents-defendants (first set) not to interfere in the possession of the petitioners-plaintiffs. The trial court in granting the temporary injunction considered three ingredients namely, prima facie case, the balance of convenience, and irreparable loss. In recording the finding, the trial court found that the suit property is jointly owned by the petitioners-plaintiffs and respondents-defendants (second set). It further found that petitioners-plaintiffs granted lease in favour of the respondents-defendants (first set) to run brick-kiln which has expired on 28.11.2020, and after the expiry of the lease, the possession of respondents-defendants (first set) is illegal because suit property has not yet been partitioned and fresh lease deed has been issued by the respondents-defendants (second set) on 20.11.2020, but no lease has been executed by the petitioners-plaintiffs, therefore, po
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