Rajesh Tandon, J.@mdashHeard Sri Alok Singh, senior advocate, assisted by Sri Gopal Narain, learned counsel for the appellant and Sri Prakash Maulekhi, learned counsel for the respondent.
2. By the present appeal, the defendant has challenged the order passed on the application 6C thereby granting the injunction in favour of the plaintiff not to dispossess the plaintiff from the property as shown in Schedule-Ka of the plaint without due process of law.
3. Further a direction has been made for depositing the sale proceeds of the lichi orchard of this year in the Court within fifteen days. The defendant being aggrieved against the order filed the present appeal.
4. At the time of admission, the notices were issued and a direction was made that both the parties shall maintain status quo.
5. The suit was filed by the plain tiff/respondent praying for permanent injunction not to evict the plaintiff by forcible means and further since he is continuing in possession for the last 45 years, he has acquired title by adverse possession. The plaint averments according to the plaintiff are that one Sri Rajendra Prakash Bahadur was the owner of the property, Enfield Grant, Pargana Pachhwa Doon, Dehradun and the property also included the agricultural property. The defendant Sri Rajendra Prasad Agarwal alias Inder was working with the father of the plaintiff Sri Durga Ram Agarwal. On 1st May, 1957, a sale deed was executed in favour of the defendant Sri Rajendra Prasad Agarwal benami in respect of Khasra No. 2251 area 1.38 acre when in point of fact, the actual possession continued with the plaintiff. The sale consideration according to the plaintiff was also paid by the father of the plaintiff Sri Durga Ram Agarwal.
6. In paragraph 4 of the plaint, it has been mentioned that on 9th December, 1963, the name of Rajendra Prasad Agarwal was mentioned in Khasra No. 2580 instead of 2280. The sole contention of the plaintiff that by virtue of the sale deed executed on 1st May, 1957, the ownership remained with the plaintiff and the status of the defendant remained benami and as such he is entitled for the injunction and further he could not be dispossessed except in accordance with law.
7. Learned counsel for the appellant Sri Alok Singh has submitted that so far as the status quo with regard to the residential portion is concerned, he has no objection till the disposal of the suit. However, with regard to the sale proceeds of lichi orchard certainly he has expressed his grievances on account of the fact that the dispute with regard to the lichi grove will always depend upon the amount of the sale consideration received by the plaintiff. Learned counsel for the appellant has prayed that the sale consideration of the lichi grove may be made through an independent agency.
8. A counter claim has also been filed by the defendant restraining the plaintiff, his servants, relatives and representatives from interfering with the "bagh bahar" and to sell the same and also to appoint receiver in respect of the disputed property.
9. Both the parties have led their evidence in respect of their possession as well as title regarding the possession over the property.
10. Since the suit is still pending, therefore, we are not expressing any opinion on the said question. It will be open for the trial court to decide the said question while deciding the issues No. 1 and 2 already framed.
11. However, since the suit is still pending, learned counsel for the appellant has agreed that so far as the residential portion is concerned, let the status quo be maintained as directed on 6th May, 2004, by the Division Bench of this Court.
12. However, the grievance of the appellant is with regard to later part of the injunction order, where the sale proceeds has been directed to be deposited within 15 days.
13. We modify the order to this extent that the trial court shall appoint an Advocate Commissioner, who shall sell the lichi grove and the sale proceeds shall be deposited in the Court subject to the final result of the suit itself. The money so deposited shall be invested in a fixed deposit giving interest for at least one year. The trial court is also directed to decide the suit within a period of four months from the date of certified copy of this order.
14. During the pendency of the suit this period, the parties shall maintain status quo except with regard to lichi grove, which has been directed to be sold out.
15. Subject to the aforesaid modification, the writ petition is disposed of.
