Ashok Bhushan, J.@mdashHeard Sri M.K. Gupta learned Counsel appearing for the petitioner, Sri B.B. Paul assisted by Sri A.P. Pal, who has appeared on behalf of respondent No. 7, learned Standing Counsel who has appeared on behalf of respondents Nos. 1, 2, 4 and 5. Sri D.D. Chauhan has accepted notice on behalf of respondent No. 3. Respondent No. 8 has appeared as an Advocate on behalf of respondent No. 7.
2. A short counter affidavit, a counter affidavit and a supplementary counter affidavit have been filed by respondent No. 7 to which rejoinder affidavit has been filed by the petitioner.
3. When the writ petition was taken on 12th August, 2010 this Court passed an order directing the learned Standing Counsel to obtain instructions. The counter affidavit on behalf of respondent No. 7 was already served on said date, which is recorded in the order. When the case was taken on 25th August, 2010 and the learned Counsel for the parties were heard, the learned Standing Counsel appearing for the State-respondents submitted that no instruction has yet been received on behalf of respondents Nos. 2, 4 and 5. Learned Standing Counsel prayed further time to file an affidavit on behalf of respondents Nos. 2, 4 and 5.
4. The contesting respondent No. 7 having already filed counter affidavit to which rejoinder affidavit has also been filed, we would have proceeded to decide the writ petition finally but for the fact that neither any affidavit has been filed on behalf of the State-respondents nor instructions could be obtained, although time was allowed on 12th August, 2010, we proceed to consider the application of the petitioner for grant of interim relief looking to the nature of dispute raised in the writ petition.
5. Brief facts of the case, necessary to be noted, are; one Smt. Kishani Kunwar, who was Zamindar, constructed a temple of Jwalaji Mahrani on land owned by her being Khasra No. 40 situate in village Bijahari, Tahsil Sasni, district Mahamaya Nagar. The temple and the appurtenant land is situated in Abadi as per revenue records. Plot No. 40 was later converted as Plots Nos. 40/2 and 27. Smt. Kishani Kunwar, who was maintaining the temple, died issue-less in the year 1950-51. The management of the temple and the land appurtenant thereto was entrusted to father of the petitioner, Devi Prasad, who claimed to be nephew of Smt. Kishani Kunwar. After enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950 with effect from 1st July, 1952, the land is claimed to be settled in favour of the occupation of Devi Prasad, father of the petitioner. Devi Prasad died in the year 2007 after which the petitioner being his son, claims to be in continuous possession and use of the temple and 20 shops built on the land of the temple. Proceedings u/s 122-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 were initiated against Devi Prasad, father of the petitioner with regard to land in question which proceedings were dropped by an order dated 29th September, 1975 of the Assistant Collector, Hathras. Devi Prasad continued to be in occupation and used to realise the rent from the tenants of the shops. Reference has also been made to Writ Petition No. 28314 of 1995 Ram Swaroop v. VI Additional District Judge, Aligarh and Ors. in which Devi Prasad was respondent No. 3 which writ petition was filed by one of the tenants whereby decree of eviction passed against the said tenant in a suit filed by Devi Prasad as landlord of the shop was challenged. The said writ petition was dismissed on 30th November, 1996. A letter dated 19th March, 2010 (Annexure-12 to the writ petition) was written by one Genda Lal Chaudhary, a sitting Member of Legislative Assembly of the ruling party, to the District Magistrate stating that Plot No. 27 area 0.058 hectare situate in village Vijahari is recorded as Gaon Sabha property on which petitioner son of Devi Prasad and daughter Smt. Geeta have made illegal possession on the basis of Will. A request was made in that letter that against illegal occupation a case be lodged and legal action be taken. After the aforesaid letter of the sitting M.L.A., a letter dated 27th March, 2010 was written by the District Magistrate to the Sub Divisional Officer forwarding the letter of the M.L.A. for making necessary inquiry and for taking action after hearing the complainant and Rajpal Singh Dishwar, Advocate. A first information report dated 13th April, 2010 was lodged by the Lekhpal of the area against the petitioner and Smt. Geeta Devi u/s 3/5 of the Prevention of Damages to Public Property Act, 1984 and Sections 406, 409, 420, 367 and 468 of I.P.C. at Case Crime No. 113 of 2010. A criminal misc. writ petition being Writ Petition No. 6383 of 2010 was filed by the petitioner and another in which writ petition this Court passed an interim order on 28th April, 2010 staying the arrest of the petitioner in Case Crime No. 113 of 2010. A notice dated 10th May, 2010 is alleged to have been issued by the Sub Divisional Officer to the petitioner asking him to remove his possession failing which the possession shall be removed by force. An application was given by respondent No. 7 to the Sub Divisional Officer requesting that on Plot No. 27 Administrator be appointed. The Sub Divisional Officer passed an order on 26th May, 2010 directing the Tahsildar/Station House Officer to remove the possession of the petitioner by police force and possession be handed over to respondent No. 7. The petitioner filed a suit in the Civil Court being Suit No. 353 of 2010 on 4th June, 2010 praying for decree of declaration that he is owner of the property situate on Plot No. 27 (Old No. 40/2) along with 20 shops and a permanent injunction be issued restraining the defendants from interfering in the possession of the petitioner. On the said suit on 4th June, 2010 notices were issued by the Civil Judge (Junior Division) fixing 2nd July, 2010. On the basis of the order of Sub Divisional Officer dated 26th May, 2010 possession is claimed to have been taken by the Lekhpal on 11th June, 2010, which is said to be handed over to respondent No. 7 on the same day. When the petitioner was not granted any temporary injunction in the suit, he filed a writ petition in this Court being Writ Petition No. 36058 of 2010 praying that a writ of mandamus be issued prohibiting the respondents from dispossessing the petitioner from the property and the shops and further direct the respondents to maintain status quo. The said writ petition was filed on 17th June, 2010 and could be taken on 21st June, 2010. After hearing the petitioner and learned Standing Counsel the Court observed that petitioner may seek his remedy against the order of the trial Court dated 4th June, 2010 refusing to grant interim injunction or to await consideration of his temporary injunction application after notice. The writ petition was dismissed on 21st June, 2010.
6. The petitioner on 18th June, 2010 received a caveat application from respondent No. 7 mentioning about the order dated 26th May, 2010 and taking possession on 11th June, 2010. Thereafter the petitioner made an application under Right to Information Act, 2005 praying for giving copies of the order and other proceedings. The petitioner also moved an application before the Sub Divisional Officer praying that he be given the copies of the orders passed by him against the petitioner. On the application which was submitted by the petitioner on 22nd June, 2010, copies were not given then the petitioner approached the District Magistrate, who passed an order on 24th June, 2010 directing the Sub Divisional Officer to take immediate steps on the request of the petitioner and provide copies of the orders. The Sub Divisional Officer, it appears, issued copy of the notice dated 10th May, 2010, copy of the order dated 26th May, 2010, and copy of the possession memo dated 11th June, 2010 to the petitioner on 30th June, 2010. The petitioner''s case is that the aforesaid copies were received by the petitioner only on 6th July, 2010 and after coming to know that the entire proceedings have been taken at the instance of the orders passed by Sub Divisional Officer without drawing any proceedings, he approached this Court by filing the present writ petition praying for following reliefs:
i) To issue a writ, order or direction in the nature of Certiorari to quash the Impugned Order dt. 26.05.2010 (Annexure No. 18) passed by Sub- Divisional Magistrate, Tahesil Sasni, District Mahamaya Nagar along with Impugned Possession Report dt. 11.06.2010 (Annexure No. 19) submitted by Lekhpal to the S.D.M. and the Impugned Possession Report dt. 14.06.2010 (Annexure No. 20) submitted by Tahesildar to the S.D.M.
ii) To issue a writ, order or direction in the nature of Mandamus directing the respondents to maintain status quo in respect of the above mentioned entire temple property including the shops by removing the Locks of Respondent No. 7 or of any other authority or Respondents and removing all effects showing symbolic possession of any of the Respondent in respect of the Temple and its entire property including the 20 shops of it.
iii) To issue a writ, order or direction in the nature of Mandamus directing the respondents to pay compensation/damages for his deliberate illegal activity of dispossessing the petitioner without any authority of law under the sole aim and conspiracy by the private Respondents with the help of Govt. Officials to grab the valuable property in question.
7. Sri M.K. Gupta, learned Counsel for the petitioner contends that petitioner, who has been continued in settled possession including his father for the last more than 50 years of the property in question and has been receiving rent for 20 shops in the temple premises, has been illegally dispossessed without drawing any proceeding on a letter of the M.L.A. and under an order of the Sub Divisional Officer dated 26th May, 2010 by police force. It is submitted that action of the State authorities dispossessing the petitioner by police force is violative of constitutional rights guaranteed to a citizen under Article 300-A of the Constitution and the State by adopting arbitrary and high handed manner has dispossessed the petitioner and given possession of the property in question to respondent No. 7, which actions are deserve to be set-aside with restoration of possession to the petitioner. It is submitted that the suit, which was filed for declaratory injunction on 4th June, 2010 in which ex-parte interim injunction was not granted, has virtually become infructuous since the petitioner has been allegedly dispossessed by putting lock on 11th June, 2010. It is submitted that at the time of filing of the suit the actions of the State authorities was neither in the knowledge of the petitioner nor was pleaded in the suit nor the said facts were founded the cause of action for filing the suit, hence the pendency of the suit can, in no manner, affect the rights of the petitioner to approach this Court for exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. With regard to Writ Petition No. 36058 of 2010 filed by the petitioner on 17th June, 2010, which was dismissed on 21st June, 2010 with the observation that petitioner may seek his remedy against the order of the trial Court dated 4th June, 2010 refusing to grant the ex-parte injunction or may await consideration of his temporary injunction application after notice, it is submitted that the said writ petition shall also not come in the way of the petitioner in approaching this Court in this writ petition since when the writ petition was filed, the petitioner was not aware of the order dated 26th May, 2010 of the Sub Divisional Officer, the alleged action which was taken on 11th June, 2010 and the possession memo which was issued on 11th June, 2001. It is stated that all these facts came to the notice of the petitioner after he received the caveat and after receiving the copies of the notice and orders under the Right to Information Act on 6th July, 2010, hence the cause of action on which this writ petition is founded is entirely different with regard to the cause of action on which Writ Petition No. 36058 of 2010 was founded.
8. Learned Counsel for the petitioner has placed reliance on various judgments of this Court as well as the Apex Court, which shall be referred to while considering the submissions in detail.
9. Sri B.B. Paul, learned Counsel for respondent No. 7, refuting the submissions of the petitioner, submits that this writ petition is not maintainable being second writ petition on same cause of action and is barred by Chapter XXII, Rule 7 of the Allahabad High Court Rules. It is submitted that petitioner having already filed a suit on 4th June, 2010, which is pending in the Civil Court and no interim junction was granted, it is open for the petitioner to file another suit for challenging the action, if any, and against dispossession of the petitioner which took place on 11th June, 2010. Sri Paul has further submitted that petitioner''s father was, in fact, Pujari of the temple and the property belong to Gaon Sabha and during consolidation proceedings it was recorded as temple and there shall be bar of Section 49 of the U.P. Consolidation of Holdings Act, 1953. Sri Paul further submits that the dismissal of the earlier writ petition on 21st June, 2010 shall operate as res-judicata and this writ petition is not maintainable.
10. Sri Paul has relied on various judgments of this Court as well as Apex Court, which shall be referred to while considering the submissions in detail.
11. We have heard the learned Counsel for the parties and have perused the record.
12. From the facts, which have come on the record, it is clear that the petitioner and prior to the petitioner his father, have been in settled possession of the property in dispute for the last several years. The case of the respondents, which emerges from pleadings, is that it was on the application of respondent No. 7 moved before the Sub Divisional Officer praying for appointment of Administrator, the order was passed by the Sub Divisional Magistrate on 26th May, 2010 for removal of possession by police force. The notice dated 10th May, 2010 issued by the Sub Divisional Officer, which has been brought on the record as Annexure-17, does not refer to any proceeding drawn for directing removal and dispossession of the petitioner. The petitioner has brought on the record copy of the report that no case is pending in the Court of Sub Divisional Officer with regard to Plot No. 27. Every action of the respondents has been initiated on the letter of the local M.L.A. dated 19th March, 2010 in which it was stated that the land is a Gaon Sabha property and the petitioner and his sister are in unauthorised possession. The District Magistrate forwarded the said complaint to the Sub Divisional Officer and thereafter a first information report was lodged on 13th April, 2010 in which petitioner''s arrest has already been stayed by this Court. Thereafter an order was passed on 26th May, 2010 for dispossessing the petitioner by use of police force. The possession is alleged to be taken from the petitioner on 11th June, 2010 by Dakhal Memo taken by Lekhpal, which is on the record, and on the same day the Dakhal is said to be handed over to respondent No. 7. The order passed by Sub Divisional Officer directing for taking possession by police force dated 26th June, 2010 (Annexure-18 to the writ petition) does not indicate that any proceeding was drawn against the petitioner for taking possession.
13. As noted earlier, proceedings u/s 122-B of U.P. Zamindari Abolition and Land Reforms Act, 1950 drawn against the father of the petitioner, were dismissed in the year 1975. The present is a case where the petitioner has been dispossessed not by any private person but has been dispossessed by the State authorities at the instance of respondent No. 7. A person in settled possession is entitled for protection from forcible dispossession. The Apex Court in the case of S.R. Ejaz v. The Tamil Nadu Handloom Weavers Co-operative Society Ltd. reported in 2002 A.I.R.S.C. 1152 was considering a case where the tenant was forcibly dispossessed by landlord. The Apex Court laid down that such actions by mighty or powerful cannot be condoned in a democratic country. Following was laid down in paragraphs 2 and 8 of the said judgment:
2. The appellant who was forcibly and illegally dispossessed since May 1986 from the tenanted premises by his landlord is moving from pillar to post for getting justice. Unfortunately, after considering all the relevant facts which were brought on record, the High Court remanded the proceedings u/s 6 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") for reconsideration by the trial court. It is apparent that the whole purpose of proceedings u/s 6 of the Act is frustrated by such order. The procedure u/s 6 of the Act is summary and its object is to prevent self help and to discourage people to adopt any foul means to dispossess a person. Dispossession of a tenant should be in accordance with law.
8. In our view, if such actions by the mighty or powerful are condoned in a democratic country, nobody would be safe nor the citizens can protect their properties. Law frowns upon such conduct. The Court accords legitimacy and legality only to possession taken in due course of law. If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given go bye either by the authority or by rich and influential persons or by musclemen. Law of jungle will prevail and ''might would be right'' instead of ''right being might''. This Court in
14. A Division Bench of this Court in the case of Commander, N.P. Kulshreshtha and Ors. v. State of U.P. and Ors. reported in 1997(1) A.R.C. 357 had occasion to consider a cast where the owners were dispossessed by use of brute force. The Division Bench observed following in paragraphs 5 and 6:
5. ...This Court accordingly in the case of Waqf Alalaulad (supra) laid down that a writ petition for protecting a persons property and liberty and even for restoration of possession of the property to the person who has been dispossessed by anti-social elements by brute force, is maintainable. In this connection, this Court has observed as under:
When a person, who has been dispossessed from his property by brazen acts of lawlessness by or with the help of anti-social elements, approaches this Court under Article 226 of the Constitution, this Court does not exercise its power to enforce the contractual and legal obligations of the parties. It only directs the Government to enforce the Rule of Law and to protect the oves, liberty and the properties of the people and if found necessary, to restore the possession of the property to the person who has been dispossessed therefrom, leaving it open to the parties to get their rights adjudicated through Civil Court. To tell a person whose property has been forcibly captured and seized by or with the help of anti-social elements, to file a suit for its recovery and be on the streets till the suit is decided by the last Court, is nothing but slapping a person in distress.
6. In the instant case, there is no dispute that the respondent No. 6 grabbed the house belonging to the petitioners with the help of antisocial elements by brazen act of lawlessness. There was no justification for the respondent No. 6 to forcibly occupy the petitioners'' House. The State machinery also failed to provide protection to the petitioners inspite of their requests. The grievance of the petitioners, to the effect that the administration including the police deliberately ignored their request for help and further that some of the Government officials were acting in collusion with the respondent No. 6, cannot be said to be without substance, in view of the averments made in writ petition which have almost remained uncontroverted.
15. The judgment of the Orissa High Court in the case of
10. Though the language of Article 226 of the Constitution is very wide it was held by the Supreme Court in
possession in law is a substantive right or Interest which exists and has legal incidents and advantages, apart from the true owner''s title.
This seems to be the principle on which the provisions of Section 9 of the Specific Relief Act and Section 145, Criminal P.C. are based. Section 9 of the Specific Relief Act confers on a person who is dispossessed without his consent of Immovable property otherwise than in due course of law a right to recover possession thereof notwithstanding any title that may be set up by the opposite party. Doubtless, this right is of a very limited nature and is subject to the result of a regular title suit and recovery of possession based on declaration of that title. But a limited right to recover possession based on mere possessory title is implicit in Section 9 of the Specific Relief Act. The object of that Section is to prevent persons from taking the law into their own hands and from disturbing the peaceful possession except by the due process of law: see Budrappa v. Narsingrao ILR 29 Bom 213 (E) and
13. ...It seems obvious therefore that any ''public property or right'' which was expressly kept outside the scope of Act XIV of 1859 by Section XVII of that Act, was also kept outside the scope of Section 9 of the Specific Relief Act. There is no authoritative pronouncement as to why such property was exempted from the operation of Section 9 of the Specific Relief Act, and the learned Counsel for both sides could not give me any material help in -this matter. All that can be reasonably Inferred is that it was assumed that Government unlike a private individual, would not lay claim to any property unless their title to the same was absolutely clear. In any case no civilised Government is expected to take the law into their own hands, or to dispossess a person of his property without his consent where the title to the same is not clear and requires adjudication by law Courts.
16. The judgment in the case of State of Haryana v. Mohinder Pal reported in AIR 2000 S.C. 3580 also supports the petitioner''s case. Paragraph 1 of the said judgment is quoted below:
1. This appeal is directed against the order made by the High Court in writ petition which was filed by the respondents complaining that the appellants have demolished the Khokhas and other structures put on by them. Two applications were filed under Sections 4, 5 and 7 of the Haryana Public Premises Land (Eviction and Rent Recovery) Act, 1972. During the pendency of those proceedings the appellants took steps to eject the respondents from the land in question and demolished the khokhas constructed by them. The High Court proceeded on the basis that even Government cannot take law into their hands while dispossessing the petitioners but should have followed the due procedure prescribed by law and not doing so is contrary to rule of law and consequently allowed the writ petition by awarding damages to the extent of Rs. 15,000/ - and Rs. 5,000/ - by way of costs. However, while disposing of the writ petition the High Court took care to protect the interest of the appellants to the extent of giving an opportunity to revive their application filed earlier or to file a fresh application and withdrawal of the earlier application will not come in their way. Learned Counsel for the appellants very vehemently submitted that in the absence of any material as to the title of the respondents in respect of the property in question the High Court could not have granted relief in the manner it has been made. It is also pointed out that there are several other strong reasons for the respondents to have acted in the manner they did. Question of examining the title of the parties does not arise at all as admittedly respondents were in possession of the property in question and put up structures thereon. On that admitted position High Court took the view that ejectment of the respondents forcibly without due recourse of law was not in due process. No exception can be taken to that view at all. In fact, this view is consistent with what has been stated by this Court in
17. The other judgments relied by the petitioner in the cases of Mohan Lal Mehra v. State of U.P. and Ors. reported in 1996(1) A.R.C. 553 and Saraswati Devi v. District Magistrate and Ors. reported in 1996 A.R.C. 434 do support the case of he petitioner.
18. The submission, which has been much pressed by Sri B.B. Paul, is that due to two reasons, firstly pendency of suit filed by the petitioner in the Civil Court in which no ex-parte interim injunction was granted and secondly dismissal of the earlier writ petition on 21st June, 2010, this writ petition is not liable to be entertained and deserves to be dismissed.
19. The first submission based on the suit is to be looked into. The petitioner has brought on the record copy of the plaint of the suit as Annexure-7 to the writ petition. In the said suit the cause of action as shown in paragraph 21 of the plaint was the knowledge of entry in Clause 6(2) of the property, refusal to correct the entry on 20th April, 2010 and giving notice on 15th May, 2010. The prayer in the suit was for declaration of title and injunction. The suit was filed on 31st May, 2010, which was taken up on 4th June, 2010 on which date notices were issued on temporary injunction. Subsequently, according to the own case of the respondents, the petitioner was dispossessed on 11th June, 2010 on the basis of the orders passed by the State authorities. The order, which has been passed by the State authorities, i.e., order of Sub Divisional Officer dated 26th May, 2010 was neither part of the pleading nor the dispossession on 11th June, 2010 was in issue in the suit, hence the pendency of the said suit and not granting ex-parte injunction in the suit cannot be treated as any bar for the petitioner to file this writ petition invoking the jurisdiction of this Court under Article 226 of the Constitution of India when the cause of action for filing the writ petition is shown to have been acquired after knowledge of the aforesaid facts on 18th June, 2010 when the caveat was received and after receiving the copies of the orders under the Right to Information Act, 2005 on 6th July, 2010. It is also to be noted that remedy u/s 6 of the Specific Relief Act, 1963 providing for restoration of possession is not available against the State and a suit u/s 6 of the Specific Relief Act, 1963 is not maintainable against the State.
20. Now comes the second submission of the learned Counsel for respondent No. 7 that this writ petition being second writ petition deserves to be dismissed under Chapter XXII, Rule 7 of the Allahabad High Court Rules. The petitioner in the supplementary affidavit has quoted the reliefs which were claimed in the earlier writ petition. Copy of the earlier writ petition has also been placed before the Court for perusal. In the writ petition there is no reference to the order passed by the Sub Divisional Officer dated 26th May, 2010 directing for dispossession of the petitioner by police force or possession memo which was issued on 11th June, 2010 or any of the action taken by the State authorities. In the earlier writ petition, following reliefs were made:
i) To issue a writ, order or direction in the nature of mandamus prohibiting all the respondents from dispossessing the petitioner in respect of the entire temple property and all the twenty shops built in the premises thereof over Khasra No. 27, Village Bijahari, Tehsil- Sasni, District Mahamaya Nagar in view of the fact that interim injunction application is to be disposed off on 02.07.2010 by the trial court as per the order-sheet in pending Suit No. 353/10.
ii) To issue a writ, order or direction in the nature of mandamus directing the respondents to maintain status quo in respect of the above mentioned entire temple property including the shops.
21. Chapter XXII, Rule 7 of the Allahabad High Court Rules is as follows:
No second application on the same fact.-Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts.
22. The bar under Chapter XXII, Rule 7 of the Allahabad High Court Rules, 1952 is on filing of second application on the same facts. The present is not a case where this writ petition has been filed on the same facts. The relevant facts, which have now been pleaded in the writ petition, are the facts which have come in the knowledge of the petitioner after receiving the caveat and copies of the orders under Right to Information Act, 2005 on 6th July, 2010. The petitioner was not aware of any action of the State authorities, which have now been complained in the writ petition. In the earlier writ petition, the petitioner had stated about filing of Suit No. 353 of 2010 and the fact that interim injunction application has now been fixed for 2nd July, 2010. The writ petition was filed praying for staying the dispossession on the ground that interim injunction application is pending in the suit which is fixed for 2nd July, 2010, hence status quo be directed to be maintained. The writ Court dismissed the earlier writ petition on 21st June, 2010 by following order:
Writ petitioner seeks a mandamus commanding the respondents not to dispossess him from Khasra No. 27, Village- Bijahari, Tehsil-Sasni, District- Mahamaya Nagar till his interim injunction application filed in original suit No. 353 of 2010 is considered by the Court. From the order sheet of the original suit enclosed as annexure No. 9 to this writ petition, this Court finds that on 4th June, 2010 the suit was presented before the competent Court with the report of musarin. The Civil Judge refuse to grant ex-parte temporary injunction and issued notices fixing on 2nd July, 2010 as the date. The plaintiff had also made an application paper No. 9(C) for spot inspection which has been granted. The order of the Civil Court dated 09.06.2010 is not under challenge in the present petition.
We have heard counsel for the petitioner and the standing counsel.
Once the Court has refused to grant ex-parte injunction on an application made for the purpose in a civil suit, no mandamus can be issued by the Division Bench of this Court granting the ex-parte temporary injunction as prayed. The petitioner may seek his remedy against the order of the trial Court dated 04.06.2010 refusing to grant the ex-parte injunction in accordance with law or else may await consideration of his temporary injunction application after notice.
This writ petition is dismissed.
23. We are thus of the view that above order dated 21st June, 2010 also does not preclude the writ petitioner from filing the writ petition when in this writ petition the action of the State shows that the petitioner was dispossessed without drawing any proceeding and only by administrative action.
24. In one of the judgments, which has been relied by Sri B.B. Paul in the case of Rame Gowda (d) by L.Rs. v. M. Varadappa Naidu and Anr. reported in AIR 2004 4609 the Apex Court in paragraphs 6 and 8 laid down following:
6. The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy and Ors. 1924 PC 144 Sir John Edge summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.
8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
25. The judgments, which have been relied by Sri B.B. Paul for the proposition that the judgment in a writ petition operates as res-judicata and second writ petition is not maintainable on same facts, are the judgments in the cases of
26. In Daryao''s case (supra), the Apex Court laid down that prior decision on a writ petition under Article 226 of the Constitution shall operate as a bar to a petition under Article 32 when the writ petition is decided on merits. There cannot be any dispute that decision on a writ petition on merits operates as res-judicata but by the order dated 21st June, 2010 this Court did not decide any issue on merits. Moreso, the subsequent writ petition, i.e. the present writ petition, has been filed on different facts which have come to the notice of the petitioner after filing of the earlier writ petition.
27. In the case of
28. The judgment in the case of Rakesh Kumar Minor u/g Smt. Shanti Devi v. Board of Revenue U.P. and Ors. reported in 1972 A.L.J. 769 as relied by the learned Counsel for respondent No. 7, which lays down that bar u/s 49 of U.P. Consolidation of Holdings Act, 1953 shall operate as res-judicata, is a question which is to be gone into while adjudicating the title of the parties on merits and at this stage it is not necessary to enter into the aforesaid issue when it is not denied that petitioner was dispossessed by the State authorities on 11th June, 2010.
29. The judgment in the case of
30. The judgment of the Apex Court in the case of State of U.P. v. Labh Chand (supra) laying down that when first writ petition is dismissed second writ petition is not maintainable, is a proposition which cannot be disputed. In the said case the writ petition was opposed on the ground that petitioner had alternate remedy before the U.P. Public Services Tribunal, hence the writ petition was dismissed as not maintainable. The said case is not attracted in the facts of the present case.
31. The Somaru Prasad''s case (supra) was a case related to Chapter XII, Rule 7 of the Allahabad High Court Rules. There is no dispute that second application on the same facts is not maintainable.
32. After considering the submissions of learned Counsel for the parties and after having perused the entire materials on the record, we are satisfied that petitioner has been illegally dispossessed by the State authorities without drawing any proceeding know to law and only on a letter written by the Member of Legislative Assembly dated 19th March, 2010, the entire proceedings were initiated. The Sub Divisional Officer without following any procedure has directed dispossession of the petitioner by police force, which is wholly illegal and without any authority. The petitioner has made out a case for grant of interim protection.
33. Until further orders, the operation of the order dated 26th May, 2010 and reports dated 11th June, 2010 and 14th June, 2010 shall remain stayed. An interim mandamus is issued to respondents Nos. 2, 3, 4 and 5 to restore the possession of the temple properties in question (Plot No. 27, village Bijahari, Tehsil Sasni, District Mahamaya Nagar) within one week from the date a certified copy of this order is produced before them or to show cause within the said period.
