IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.295 of 2009
Ganesh Upadhyay, son of Ram Bhagat Upadhyay, resident
Of Village- Maranpur, Police Station- Narayanpur, District-
Bhojpur, at present residing at Ambay Nagar, Housing Colony
Road, Chandawa, Ara, Police Station- Ara Nawada, District-Bhojpur.
.....(Plaintiff)..Appellant.
Versus
1. Phul Kumari Devi, wife of Sri Nagendra Tiwary,
resident of Village-Bishupur, Police Station- Shahpur
(Karnamepur), District- Bhojpur, at present residing at
Christian Colony, Chandawa More Ara, Police Station-Ara
Nawada, District-Bhojpur.
2. Vidyawati Devi, wife of Brahmeshwar Mishra, resident
of Village- Ramdatahin, Police Station-Shahpur (Karnamepur)
District-Bhojpur, art present residing at Christian Colony
Chandawa More Ara, Police Station-Ara Nawada, District-
Bhojpur...........(Defendants Ist Set)Respondents- Ist Set.
3. Sri Shyam Nandan Upadhyay.
4. Sri Brij Nandan Upadhyay.
Both sons of Late Pandit Laljee Upadhyay, resident of Village-
Chandawa, Police Station- Ara Nawada, District- Bhojpur.
........................(Defendants-2nd Set)Respondent 2nd Set.
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5. 03. 11. 2010. Heard.
This Miscellaneous Appeal is directed against
the order dated 26. 03. 2009, passed by Sub Judge, Ist,
Ara, in Title Suit No. 311/08, by which he has rejected
the petition.
2. The case of the plaintiff is that Plot No.
1134 belongs to the plaintiff and Plot No. 1135 belongs
to the defendant-respondent Ist set. In the said case,
the plaintiff filed a petition for injunction for restraining
the defendant from constructing the house and it is
alleged that defendant started new construction in Plot
No. 1134 and not in Plot No. 1135. However, there is
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no specific measurement that Plot No. 1134 has been
encroached neither in the pleading in the plaint nor
petition under Order 39.
3. However, petition has been rejected on the
ground that there is report of Pleader Commissioner
that there is construction over suit property in some
portion and as such defendants are in possession at the
time.
4. Learned counsel for the appellant has
however, contended since the Pleader Commissioner
report that construction has been made over the suit
property and hence injunction ought to have been
granted.
5. However, having regard to the fact that
there is no specific mention either in the plaint or in the
injunction petition nor Pleader Commissioner’s report
about area which has been encroached on the portion
of Plot No. 1134 and hence allegation about
encroachment of Plot No. 1134 is quite vague.
6. In such circumstance, I do not find any
merit in this injunction petition and hence the
injunction petition is hereby rejected.
7. Accordingly, this appeal is dismissed.
m.p. ( Gopal Prasad, J.)
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