ATA HUSAIN AND 7 OTHERSversusGULAM NAKI AND 4 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
             MATTERS UNDER ARTICLE 227 No. - 6179 of 2026

Ata Husain And 7 Others
                                                               .....Petitioner(s)
                                    Versus

Gulam Naki And 4 Others
                                                            .....Respondent(s)

Counsel for Petitioner(s)           :   Arvind Srivastava, Vikrant Gupta
Counsel for Respondent(s)           :   Lalit Kumar

Court No. - 5
                    HON'BLE VIKAS BUDHWAR, J.

1. Heard Sri Arvind Srivastava, learned counsel for the plaintiff-petitioners
and Sri Lalit Kumar, learned counsel for the defendant-respondents..

2. A statement has been made by learned counsel for the rival parties that
they do not propose to file any affidavit and the writ petition be decided on
the basis of the documents available on record.

3. With the consent of the parties, the present petition is being decided at the
fresh stage.

4. The case of the plaintiff-petitioners is that an Original Suit no.98 of 2024
came to be instituted before the Court of Civil Judge (Sr. Div.), Budaun
against the defendant-respondents for declaration to the effect that the
plaintiff be declared the owner of the property mentioned by letter 'A, B, C,
D' and 'E, F, G, H' in red colour in plaint map and further relief for
permanent injunction was prayed with respect to the property mentioned by
letter 'A, B, C, D' and 'E, F, G, H' by red colour. As per the averments in the
plaint, it was asserted that the plaintiffs are the owner in possession of plot
nos. 180 and 182, as the said plots are ancestral and it was also asserted that
the aforesaid Khasra number was being used as an abadi since long and
plaintiff had got constructed the house over the same. As per the plaintiff-
petitioners, between the both the Gatas, there existed 8 ft. wide rasta for
ingress and egress, which is a private rasta of the plaintiff and it was further
stated that the vacant part of Khasra no.182, which is show by letter no.
'A,B,C,D' and in Khasra no. 180 part shown by letter no. 'E, F, G, H' the
grave of ancestors. On being noticed, the defendant-respondents filed their
written statements denying the averments stating that the property in dispute
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                                2


was owned by the grandfather of the defendant-respondent no.4 Mustak
Husain Kha and the father of Mustak Husain Khan was Kallan Khan, and
one of the brothers Ashik Husain Khan. It was also stated that Mustak
Husain Khan and his brother Ashik Husain purchased Khasra no. 128 by
virtue of a registered sale deed dated 22.08.1911 and Khasra no. 123 was
given new no. 182 in consolidation proceedings in that regard and as per the
aforesaid sale deed Mustak Husain and Ashik Husain were having half
share. Along with the said plaint, the application being 5Ga being a
temporary injunction application came to be preferred restraining the
defendants from taking illegal possession. The Court of Civil Judge (Sr.
Div.) Budaun on 30.05.2025 proceeded to pass an order for maintenance of
status quo.

5. Aggrieved against the same, defendant-respondents preferred a Misc.
Appeal no.22 of 2025, Gulam Naki and others vs. Ata Husain, in which the
Court of District Judge, Budaun on 25.03.2026 rejected the temporary
injunction application vide order dated 30.05.2025, against which the present
petition has been preferred.

6. Learned counsel for the plaintiff-petitioners has sought to argue that the
order of the appellate court cannot be sustained for the simple reason that in
case the appellate court was of the opinion that there happened to be a
counter claim and an application for injunction, which has not been
considered then the matter ought to have been remitted back to the trial court
to decide the temporary injunction application after considering the counter
claim and the contentions set forth by the defendant-respondents. Further
submission is that even on the basis of the perusal of the Khatauni justifying
the fact that the plaintiff-petitioners were in probation and the owners of the
land, the trial court had accorded injunction and further at the stage of
injunction, the trial court was not supposed to go into the questions relatable
to the title and the sale deed in that regard.

7. Sri Lalit Kumar, learned counsel for the defendant-respondents on the
other hand submits that the order passed by the trial court cannot be faulted
for the simple reason that the appellate court has evaluated the entire records
and had come to the conclusion that there happened to the sale deed in
favour of the defendant-respondents and further the trial court on the basis of
the superfluous observations that too prima facie accorded injunction
without considering the import and the impact of the contentions raised and
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                                           3


the claim set up in the counter claim. Further while relying upon the
judgment of this Court in Uttar Pradesh State Sugar Corporation Limited
vs. Raza Buland Sugar Company Rampur, (1985) ALJ 107, it is contended
that while granting injunction under Order 39 Rule 1 and 2, the Court cannot
grant temporary injunction on the basis of balance of convenience without
recording a finding regarding plaintiff’s possession. Contention is that the
order in question cannot be sustained.

8. I have heard the submissions so made across the Bar and perused the
records carefully.

9. Apparently, a suit came to be instituted by the plaintiff-petitioners for a
declaration that the plaintiff be declared owner in possession of the demised
property and a permanent injunction. Along with the said suit, an application
under Order 39 Rule 1 and 2 was also preferred. During the pendency of the
said suit, a counter claim was filed by the defendant-respondents. The trial
court by virtue of the order dated 30.05.2025 granted an order of status quo,
against which a Misc. Appeal came to be preferred. The contention of the
learned counsel for the defendant-respondent is that without recording the
finding regarding plaintiff’s possession, the injunction order has been
passed. However, on the contrary, according to the plaintiff-petitioners there
happened to be Khatauni showing the ownership of the plaintiff-petitioners.
The appellate court in the order impugned in para-11 has observed as under:-

“11- इस ्ऺकरण का एक अन्य महत्वपूणर् तथ्य यह भी है िक संपूणर् आलोच्य आदेश के अवलोकन से यह
िविदत होता है िक मा्ऴ उपरो्व सीिमत िववेचना के आधार पर ही िव्षान िवचारण न्यायालय ्षारा वादीगण का
्ऺथम दृ्िया केस िस्ध होना मान िलया गया एवं उ्व आधार पर ही सुिवधा का संतुलन एवं अपूणर्नीय ्षित के
िबन्दु को अिभिनणर्त कर िदया गया है, जबिक संपूणर् आलोच्य आदेश में िकसी भी प्ष के अध्यासन संबंधी
कोई िनष्कषर् िव्यमान नहीं है। बहस के दौरान ्ऺत्यथर्गण के िव्षान अिधव्वा से तत्संबंध में िविनिद्ि रूप से
पूछे जाने पर उन्होंने भी स्वीकार िकया िक वास्तव में संपूणर् आलोच्य आदेश में िव्षान िवचारण न्यायालय ्षारा
अध्यासन के िबन्दु पर कोई िनष्कषर् ही नहीं िदया गया है। ऐसे िनष्कषर् के अभाव में सुिवधा के संतुलन एवं
अपूणर्नीय ्षित संबंधी िबन्दु का िनराकरण िकया जाना संभव नहीं है एवं यथािस्थित का आदेश पािरत करना
्िावहािरक रूप से पिरणामहीन है।
माननीय म्शास उच्च न्यायालय ्षारा डी० एल्बटर् बनाम लिलता एवं अन्य 1989 सीसीसी 559 (म्शास) के
्ऺकरण में अवधािरत िकया गया है िक जहाँ इस ्ऺकार की ्ऽांित ्ऺचिलत हो एवं दोनों ही प्ष अपना-अपना
अध्यासन होना बताते हों, न्यायालय को यथािस्थित का आदेश पािरत नहीं करना चािहए।
इसी आशय की िविध ्िवस्था मध्य्ऺदेश उच्च न्यायालय ्षारा गनेशा बनाम जगन्नाथ एवं अन्य 2021 (1)
सीसीसी 100 (मध्य ्ऺदेश) में पािरत की गयी है।”

10. The operative portion of the same reads as under:-
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                                    “अपीलाथर्गण की ओर से ्ऺस्तुत यह ्ऺकीणर् िसिवल अपील स्वीकार की जाती है। मूलवाद संख्या-
                                    98/2024 अता हुसैन आिद बनाम गुलाम नकी आिद के ्ऺकरण में िसिवल जज (सी०िड०), बदायूँ के ्षारा
                                    पािरत आदेश िदनांिकत-30-05-2025 अपास्त िकया जाता है, पिरणामतः ्ऺाथर्ना-प्ऴ 5 ग बाबत अस्थाई
                                    िनषेधा्ञा िनरस्त िकया जाता है। इस अपीलीय प्ऴावली को िनयमानुसार मूल प्ऴावली में संिविलत िकया
                                    जाये।”

                                    11. In the opinion of the Court, in case, there was any discrepancy and the
                                    deficiency in the order of the trial court that the counter claim was not
                                    considered and the aspects relating to the possession were also not taken into
                                    account, then too it was a perfect case wherein the matter ought to have been
                                    remitted back to the trial court to pass a fresh order. Learned counsel for the
                                    defendant-respondents submitted that if it being so the matter be remitted
                                    back in that regard.

                                    12. Accordingly, without delving further into the matter, the order dated
                                    25.03.2026 passed by the District Judge, Budaun in Misc. Civil Appeal No.
                                    22 of 2025, Gulan Naki and others vs. Ata Husain and others is set aside.
                                    Matter stands remitted back to the trial court to pass a fresh order on the
                                    temporary injunction application strictly in accordance with law by
                                    29.05.2026.

                                    13. Since the parties are represented through their counsel, thus it would be
                                    deemed that they have full knowledge of the order. No unnecessary
                                    adjournments shall be granted and in case, adjournment is granted, same
                                    shall not be beyond 3 days at a stretch. By saying so, this Court has not
                                    entered into the merits of the matter. All contentions are left open to be
                                    raised by the respective parties.

                                    14. Certified copy of the order be served by both the parties by 11.05.2026.

                                    May 5, 2026
                                    N.S.Rathour

                                                                                                      (Vikas Budhwar,J.)




Digitally signed by :-
NIPENDRA SINGH RATHOUR
High Court of Judicature at Allahabad