Jai Guru Sampradaya, Delhi v. Transit Camp, Near Kailash Gate, Muni-ki-Reti, Rishikesh, Uttarakhand

Mahant Ashok Prapanna Sharma, Mahant & Gaddi Nassin and Manager, Mandir Shri Bharat Ji Maharaj Ji, Rishikesh, District-Dehradun.

Shri Bharat Ji Maharaji And Idol Installed in Mandir Shri Bharatji Maharaji, Rishikesh, District-Dehradun, Mahant Ashok Prapanna. (cid:133)(cid:133)(cid:133)(cid:133) Respondents Sri Sandeep Mandal, learned counsel for the petitioners. Date July 14, 2009 Hon(cid:146)ble B.S.Verma, J. 2 By means of this writ petition, the petitioners have sought writ to set aside the judgment and decree dated 06.08.2001 passed by Addl. District Judge/3rd Fast Track Court, Dehradun in Civil Appeal No. 27 of 1995, Mahant Ashok Prapann Sharma and another versus U.P. State and others.

2. The judgment and decree dated 06.08.2001 has been assailed on the ground that the petitioners(cid:146) premises is governed by the Government Grants Act, 1895 and exempted from the provisions of Transfer of Property Act as the same is vitiated by procedural irregularity and statutory provisions

The facts, in brief, are that the plaintiff- Mahant Ashok Prapann Sharma and others (respondents herein) had filed a suit against the defendants/ petitioners for possession of the disputed property and damages. The said suit was dismissed on 31.03.1995 by 4th Additional Civil Judge, Dehradun. Aggrieved by the order of Additional Civil Judge, the plaintiffs Mahant Ashok Prapann Sharma and others preferred appeal which was registered as Civil Appeal No.27 of 1995. The said appeal was allowed by the judgment and decree dated 06.08.2001. Aggrieved by the said judgment and decree passed by the First Appellate Court, petitioners, as has been stated in Para 12 of the writ petition, preferred Second Appeal No.1347/2001, Jai Guru Sampradaya and another versus Mahant Ashok 3 Prapann and others before this Court. According to the petitioners, the said second appeal is still pending for disposal.

The petitioners have already availed statutory remedy which was available to them as per provision of Sec. 100 C.P.C. The same judgment and decree, which is impugned in the second appeal, has been assailed by filing writ petition under Article 227 of the Constitution of India after eight years and no latches have been explained in any paragraph of the writ petition. When the second appeal is pending for disposal before this Court, the writ petition could not be entertained against the judgment of first appellate court. Even otherwise, remedy is available to the petitioners for filing second appeal. The contention of the learned counsel for the petitioners that learned first appellate court misread the evidence and did not consider the report of Magistrate and committed judicial error. The next contention made by the learned counsel for the petitioners is that the suit was not maintainable. These pleas, if not raised in the pleadings by filing written statement, the petitioners could not take such plea in the other collateral proceedings by filing writ petition. The learned counsel for the petitioners has relied upon the judgment reported in 2001 (8) Supreme Court Cases, Page 477. I have gone through the said judgment and it is of no help to the petitioners because it was passed in a rent case and the appeal is regular which is pending before the Court.

In view of above discussion, the writ petition is devoid of merit and is dismissed in limine. 4

14.7.2009 (B.S.Verma, J.) P.Singh