Court No. - 10

Case :- MATTERS UNDER ARTICLE 227 No. - 6872 of 2021

Petitioner :- Rajesh Kumar Verma

Respondent :- Nagar Nigam Gorakhpur And 7 Others

Counsel for Petitioner :- Arvind Srivastava Iii,Ashutosh Tiwari

Hon'ble Abdul Moin,J.

1. Heard.

2. Under challenge is order dated 04.09.2021 passed by the

Additional District Judge, Gorakhpur/Special Judge Prevention

of Corruption Act (UPSEB), Gorakhpur in Misc Appeal No. 54

of 2018 whereby the appeal filed by the petitioner has been

rejected. Also under challenge is order dated 19.09.2016, a copy

of which is annexure 5 to the petition, passed by the Civil Judge

(Junior Division), Gorakhpur in Original Suit No. 680 of 2014

wherein interim injunction application filed by the petitioner

was rejected.

3. Learned counsel for the petitioner submits that both the

courts have failed to consider that the shop in question is

deemed to be in possession of all the persons who are the co-

owners. In this regard reliance has been placed on judgement of

Punjab and Haryana High Court in the case of Bhartu vs Ram

Sarup (P&H) (F.B.) reported in 1981 PLJ 204: 1981

Land.L.R. 356.

4. Having heard learned counsel for the petitioner and having

perused the record what is apparent is that initially the

injunction application filed by the petitioner was rejected vide

order dated 19.09.2016. Perusal of the said order would indicate

that learned trial court had specifically indicated (page 40) that

the disputed shop has been allotted vide orders dated

28.03.2014, 28.07.2014 and 10.09.2015 to Smt Dharma Devi,

thereafter to Smt Reshma and subsequent thereto to Shri

Prakash Narain Pandey which fact has not been disputed by the

petitioner. Other grounds were also considered while rejecting

the said injunction application.

5. Upon the said order being challenged by filing Misc Appeal

No. 54 of 2018 vide order dated 04.09.2021, the appellate court

in para 10 of its order has specifically considered that the moot

question would be as to whether the petitioner/appellant is in

possession of the disputed shop or not.

6. Placing reliance on a judgement of Hon'ble the Apex Court in

the case of S. R. Batra and another vs Smt Taruna Batra

reported in (2007) 3 SCC 169, the appellant court held that

unless a person is in possession of the property, he is not

entitled for grant of any interim injunction.

7. Learned counsel for the petitioner contends that the said

finding passed by the appellate court would run contrary to the

judgement of the Punjab and Haryana High Court.

8. Having heard learned counsel for the petitioner and having

perused the record what is apparent is that initially the

injunction application was rejected on the ground that the shop

in dispute has been allotted to various persons of which the

petitioner admittedly is not one of those persons. This fact has

not been denied by the petitioner before the trial court. Upon

the matter being carried in appeal, the appellate court has

specifically framed a question as to whether the petitioner has

led any evidence to indicate that the petitioner has been in

possession of the disputed property. As no evidence was led by

the petitioner consequently placing reliance on the judgement of

Hon'ble the Apex Court in the case of S. R. Batra (Supra)

wherein the Apex Court was of the view that in case a person is

not in possession of the property, as such no interim injunction

can be granted, rejected the appeal.

9. Even if the judgement of the Punjab and Haryana High Court

has held to the contrary, the same would not have any effect in

as much as the judgement of the Punjab and Haryana High

Court would have to give way to the law settled by Hon'ble the

Apex Court in the case of S. R. Batra (Supra).

10. Here it would be pertinent to indicate that Hon'ble the Apex

Court in the case of S. R. Batra (Supra) has specifically held

as under:

"It may be noticed that the finding of the learned Senior Civil

Jud