Allahabad High Court
Smt. Archana Tyagi And 4 Others vs Yaduraj Narain on 3 February, 2023
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 37 Case :- MATTERS UNDER ARTICLE 227 No. - 10796 of 2022 Petitioner :- Smt. Archana Tyagi And 4 Others Respondent :- Yaduraj Narain Counsel for Petitioner :- Shiv Sagar Singh Counsel for Respondent :- A/A1931,Ajay Kumar Singh,Ashish Kumar Singh,Raghav Arora Hon'ble Ajit Kumar,J.
Heard Sri Shiv Sagar Singh, learned counsel for the petitioners and Sri Ashish Kumar Singh, learned counsel for the respondent.
In this petition petitioners have raised grievance regarding rejection of their application for appointment of Advocate Commissioner in respect of suit property in a suit for recovery of possession of suit land on the ground that the terms and conditions of the gift deed have been violated by the donee.
It is argued by learned counsel for the petitioners that certain constructions are going on over the suit land and it needed to be determined as to what nature of construction was going on.
Per contra it is argued by Sri Ashish Kumar Singh, learned counsel for the respondent that earlier one Cinema Hall was standing there and it functioned till the year 2019 and thereafter the defendant/ respondent got a fresh map sanctioned for Multiplex, a multi theater Complex over and above the same land and accordingly demolition work was carried out in respect of the existing cinema hall. He submitted that the controversy arose when the petitioners started laying the plinth of new Multiplex and it traveled upto this Court in First Appeal From Order No. 1082 of 2022 in which a detailed order was passed by this Court on 13.05.2022. He submits that the Court had permitted the petitioners to raise the construction up to the level of plinth and the suit proceedings were directed to be expeditiously concluded.
Learned counsel for the petitioners could not dispute the order passed by this Curt on 13.05.2022. The order that has been passed by this Court on 13.05.2022 is reproduced hereunder:
"Heard Mr. Shashi Nandan, Senior Advocate assisted by Mr. Shiv Sagar Singh, learned counsel for the appellants and Mr. Naveen Sinha, Senior Advocate assisted by Mr. Ashish Kumar Singh, learned counsel for the respondent.
It is submitted by Mr. Naveen Sinha, Senior Advocate that pursuant to the orders of learned trial court there was no interim order in favour of the appellants herein. The respondent has started construction but his learned counsel has instructions to convey that the parties would still go on with the ADR mechanism. It is further submitted that the respondent will file an undertaking before the trial court that respondent would not construct above the plinth level during the pendency of the litigation on all the disputed property.
This proposal is accepted by the appellants who has conveyed through Mr. Shashi Nandan, Senior Advocate that they accept this proposal but at the same time, if the ADR mechanism fails on or before August, 2022, the suit to proceed and the parties would not seek unnecessary adjournments. The suit being Original Suit No.1510 of 2021 (Smt. Archana Tyagi and Others VS. Yaduraj) be heard and decided as expeditiously as possible not later than one year from today.
However, if there is any urgency or the court cannot take up the matter due to any other reason, the parties would apply for injunction before the Court below.
With the aforesaid observations, the appeal stands disposed of."
(Emphasis added) In the circumstances, this is an admitted position that there already existed a Cinema Hall till the year 2019 and demolition work in respect thereof was carried out as is also reflected from the pleadings of plaint coupled with the fact that new map had been got sanctioned by the competent authority for constructing a Multiplex and this Court had permitted the respondents herein to record an undertaking that they carryout the construction activities upto the level of plinth. It is being undertaken by the learned counsel for respondent that the construction activity is only up to the level of plinth.
Still further when there is no dispute regarding the suit property and the identity of the said property as such, I do not consider it necessary for any appointment of Advocate Commissioner or Amin Commissioner for the purposes of identifying the location of suit property.
In the circumstances therefore, the order passed by the trial court rejecting the application for appointment of Advocate Commissioner cannot be said to be a flawed one.
However, it is observed that the court concerned shall abide by the directions issued by this Court on 13.05.2022 in its letter and spirit The petition is therefore, dismissed subject to what has been observed herein above.
Order Date :- 3.2.2023 IrfanUddin