Appellate court may set aside perverse trial grant of temporary injunction ignoring prima facie absence of case for protecting unauthorized construction beyond allotted plot; additional evidence permissible pre-trial.

JUDGMENT :

SUBHASH VIDYARTHI, J.

1. Heard Sri Samarth Saxena, the learned counsel for the petitioners, Sri Puneet Chandra, the learned counsel for the opposite parties - U.P. Avas Evam Vikas Parishad and its officers and perused the records.

2. By means of the instant petition filed under Article 227 of the Constitution of India the petitioners have challenged the validity of a judgment and order dated 17.01.2026, passed by the learned Additional District Judge/FTC (New), Lakhimpur Kheri in Misc. Civil Appeal No.03 of 2025: U.P. Avas Evam Vikas Parishad and others Vs. Smt. Kusum Mishra and another.

3. Briefly stated the facts of the case are that the petitioners had filed Regular Suit No.217 of 2024 against the opposite parties seeking a decree of perpetual injunction stating that the petitioner no.1 was allotted House No.75-EWS measuring 42.21 square meters situated in Awas Vikas Colony, Lakhimpur Kheri on 02.12.1994 and she is in possession of the house along with petitioner no.2. Boundaries of the house are mentioned are as follows: -

4. The plaintiffs pleaded that the opposite parties want to allot the pond land and for that purpose they have wrongly carved out Plot No.75/1 over a part of the pond land. The opposite parties have issued a notice dated 01.12.2023 for demolition of alleged illegal construction raised by the plaintiffs. The petitioners-plaintiffs have prayed for issuance of a perpetual injunction restraining the defendants-opposite parties from carrying out any demolition or alteration in the petitioners' house and from allotting the land adjacent to the house of the plaintiffs to any person. The petitioners filed an application for temporary injunction to the same effect.

5. The opposite parties filed objections against the application for temporary injunction wherein they inter alia stated that the petitioner no.1 has been allotted House No.75-EWS, measuring 42.21 square meter. She has paid the sale consideration in installments, but has not got a sale deed of the house executed in spite of issuance of several notices. The opposite parties stated that possession of the petitioner no.2 over the house in dispute is illegal. The opposite parties denied that there is a passage (kulia) towards south of the house in dispute and they stated that towards south of the house of the petitioner no.1, there is Plot No.75/1, which has duly been allotted to one Ashish Agarwal. The petitioner no.2 has constructed a parapet which extends beyond the boundaries of the land allotted to the petitioner no.1 and she has raised illegal construction on the first floor of the building, for demolition of which a notice has already been issued.

6. The learned trial court issued a commission to the Curt Amin for local inspection of the property in dispute and the Amin submitted a commission report dated 16.04.2024, wherein it is stated that the land in dispute is in the form of a lane, which is lying vacant. A parapet is extending on the lane towards south of the house of the petitioner no.1. The site plan prepared by the Amin Commissioner mentions a pond after the passage.

7. The petitioners had filed a copy of the allotment le