The need for factual appreciation of evidence before deciding on property boundaries and the presumption of right flowing from Section 44 of the Land Revenue Act, 1901.

JUDGMENT

Sharad Kumar Sharma, J. - The brief facts, which emerges for consideration, based on the pleadings raised in the writ petition, are that the petitioner before this Court, claiming himself to be the owner of the land by virtue of the sale deeds, which were executed in his favour on 28.05.1996 and 31.12.1997. If the sale deeds are taken into consideration, wherein the property, which has been disclosed to be conveyed to him is admittedly shown to be khasra No. 1377/1, having an area of 0.081 hectares, situated in village mauja Badamawala (West Hope Town) pargana Pachhwadoon, District Dehradun and the property covered in the second sale deed is yet again a part of the property, which was lying in khasra no. 1377/1, having an area of 0.018 hectares i.e. 0.20 acres of mauja Badamawala (West Hope Town) pargana Pachhwadoon, District Dehradun.

2. The plaintiffs (respondents herein) have instituted a suit being Suit No. 238 of 2012, Ram Singh and another Vs. Pooran Singh, for the grant of a decree of permanent injunction on 16.11.2012, in relation to the property, which was more particularly described at the foot of the plaint, which is described hereunder:-

3. The suit accompanied with it an application, under Order 39 Rules 1 & 2 of the CPC. The same was considered by the Court of Civil Judge (Junior Division), Vikas Nagar, Dehradun and the Application, which was preferred under Order 39 Rules 1 & 2 of the CPC, was considered under terms and the parameters, which had been judicially laid down for the grant of injunction pendentilite the civil proceedings, the learned Court, while recording its finding on issue No. 1 i.e. the prima facie case, the learned trial Court has specifically recorded a finding, that as far as the subject matter of the suit is concerned, admittedly, the plaintiffs/respondents happen to be the record owners of the disputed property given in the plaint, and the entries in the revenue record too stand as such and while considering the stand taken by the petitioner/defendant in his written statement paper No. 82A1, the Court had yet again recorded that, by the two sale deeds, the property, which has been conveyed to him and shown to be lying with khasra No. 1377/1, which is not the subject matter of the suit itself, and hence, the application under Order 39 Rules 1 & 2 of the CPC was allowed, which was put to challenge by the petitioner, under Order 43 Rule 1(r) of CPC, by preferring a Miscellaneous Civil Appeal, being Appeal No. 3 of 2019, Shri Puran Singh Vs. Shri Ram Singh and another. The same has been dismissed by the Court of Additional District Judge, Vikas Nagar, Dehradun. These are the two orders, which are put to challenge by the petitioner by invoking writ jurisdiction under Article 227 of the Constitution of India.

4. The learned counsel for the petitioner had placed his arguments from the following perspectives:-

Firstly, that the suit was not maintainable. The rationale behind his argument is that the property in question, since having been recorded in the revenue records as a revenue land, the suit itself would be barred by the provisions contained under Section 331 of the U.P.Z.A. & L.R. Act.

With all humility at my command, this aspect of maintainability of a suit cannot be an issue to be considered at this stage in the writ petition at the time when an Application under Order 39 Rules 1 & 2 of the CPC is being considered, which has been held to be an interlocutory proceedings by virtue of a Full Bench judgement of Allahabad High Court, Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad and others, (1991) AIR Allahabad 114.

5. Even otherwise also, the said aspect of maintainability of a suit would always be a subject matter of determination on appreciation of fact under the given set of circumstances of each case and there cannot be a common yardstick which could be applied, to decide the issue about the maintainability of the suit and that is why the legislature has provided the protection by Sect