JUDGEMENT

Date : 29-02-2024 The instant petition has been filed under Article 227 of the Constitution of India for quashing the order dated 05.01.2023 passed in Misc. Appeal No. 16 of 2022 by the learned District Judge, Siwan whereby and whereunder the learned District Judge, Siwan set aside the order dated 01.09.2020 passed by the learned Sub Judge, XIII, Siwan in Title Suit No. 687 of 2011 and passed an order for maintaining status quo till disposal of Title Suit No. 687 of 2011.

2. Briefly stated, facts of the case are that the plaintiffs/appellants/respondents 1st set filed Title Suit No. 687 of 2011 for declaration of their title and for restraining the defendants from dispossessing them from the suit land with further prayer to restrain the defendants from changing the physical feature of the land. Petitioners are defendants before the learned trial court and respondents before the learned appellate court. The plaintiffs claimed that the suit land is a Gairmajarua Malik and Noor Mohamad and Noorul Ain were the ex-landlords settled the entire land of Survey Plot Nos. 175 and 176 under Khata No. 363 in favour of one Azimuddin Mian and handed over the possession on payment of rent before vesting of Jamindari. Said Azimuddin Mian had taken loan from one Kamla Pandey who filed Money Suit No. 419 of 1953 for the recovery of loan amount which was decreed. Thereafter, Execution Case No. 395 of 1954 was filed and one Most.

Marachhia purchased the suit land having area of 14 katha 2 dhur in auction sale. Thereafter, the suit land was partitioned amongst the sons of Most. Marachhia who executed seven sale deeds on different dates with regard to 9 katha 4 dhur in the name of parents of the plaintiffs and handed over the possession of the suit land. After death of their parents, the plaintiffs came into possession of the suit land and their names have been mutated in the revenue record and Jamabandi was created in the name of the plaintiffs and they started paying rent to the State of Bihar which continued till 2006 and last rent receipt was issued on 10.02.2006.

3. The suit was contested by defendant State by filing written statement in which they denied all the claims of the plaintiffs and further asserted that as per the Survey Khatiyan, Survey Plot No. 175 is recorded as ‘graha’ (pond) and Suvery Plot No. 176 is recorded as part of ‘ parti kadeem’ under Gairmazarua Malik Khata No. 383. The defendants further claimed that after vesting of the Zamindari in the State of Bihar, the State Government became the lawful owner of the aforementioned two plots. The defendants further contended that no Jamabandi was ever created in the name of private person and no one has been paying rent and no official has been receiving rent from any private person. It was further submitted in the written statement that the major portion of Survey Plot No. 175 was being used for public purposes and as there was need to construct a building for Sahayak Thana, Sarai, a proceeding for transfer of the land was initiated and after spot inspection, the land was found fit for transfer to the Police Department and it was finally transferred on 07.06.2011 and possession has been given to Police Department which started the construction of building of Sahayak Thana, Sarai. Thus, the defendants claimed that the plaintiffs have no right, title and possession over the land in question.

4. On 12.08.2022, an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure (hereinafter ‘the Code’) has been filed by the plaintiffs with a prayer that defendants be restrained from changing the present status of the land in question and they be further restrained from making any construction of any building or to sale out the land in question.

5. Earlier on 28.03.2012, plaintiffs filed an application under Order 26 Rule 9 of the Code for appointment