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2008 DIGILAW 1238 (RAJ)

Chhagan Singh v. D. J. , Pali .

2008-05-06

DINESH MAHESHWARI

body2008
JUDGMENT 1. - By way of this writ petition, the plaintiff-petitioner seeks to question the order dated 19.09.2007 (Annex. 5) as passed by the District Judge, Pali in Civil Appeal (Order) No. 49/2006 setting aside the order issuing temporary injunction as passed by the Civil Judge (Junior Division), Marwar Junction on 31.08.2006 in Civil Misc. Case No. 2/2006. 2. The plaintiff-petitioner has filed the suit for declaration and perpetual injunction and, according to the averments taken in the amended plaint, the plaintiff has claimed his rights over a piece of land situated at village Thal, Tehsil Marwar Junction, District Pali stated to be measuring 36 feet on the northern side; 46 feet on the southern side; 85 feet on the eastern side; and 75 feet on the western side. While stating that the land in question is encompassed on the northern side by public way, on the southern side by open land, on the eastern side by Laxman Singh's house, and on the western side by public way, the plaintiff has alleged that the land in question has been in his possession for about 40 years, he has a room constructed thereat, and has been residing with his family. 3. It appears that in the plaint as originally presented, the plaintiff stated the measurement of the disputed land as 40 x 60 feet and Laxman Singh's house being situated towards its southern side. Be that as it may, the fact nevertheless remains that the plaintiff has alleged the land in question being adjacent to the land of his brother Laxman Singh. 4. The plaintiff has stated illegal interference by the defendants Gram Panchayat, Jhijhardi and its Sarpanch and has alleged that he was sought to be dispossessed from the land in question for political enmity. The plaintiff also filed an application for interim relief and sought temporary injunction against the defendants that he be not dispossessed and the defendants should not interfere with his use and occupation of the land in question. 5. The defendants put the application for temporary injunction to contest on the submissions, inter alia, that the land in question was Panchayat's property proposed for Anganwadi Kendra and the plaintiff was only an unauthorised occupant. 5. The defendants put the application for temporary injunction to contest on the submissions, inter alia, that the land in question was Panchayat's property proposed for Anganwadi Kendra and the plaintiff was only an unauthorised occupant. The defendants pointed that on 10.05.2001, the previous Gram Panchayat removed the encroachment on the land in question as made by one Lal Singh s/o Bheem Singh; and the plaintiff himself was a complainant against such encroachment. According to the defendants, the material of the earlier encroacher lying at the site was taken over in possession by the Panchayat and was handed over to the plaintiff Chhagan Singh but thereafter he has attempted to take over the land in question in his possession. 6. The learned Trial Court proceeded to issue temporary injunction against the defendants that the plaintiff should not be dispossessed from the land in question with the observations that there had been inconsistency in the stand of the defendants in relation to the land in question when they alleged it to be the land of way and also alleged the same being the land proposed for Anganwadi Kendra; and on the considerations that even if a trespasser, the plaintiff could not be dispossessed without due process of law and the defendants have failed to show if they were proceeding in against the plaintiff in accordance with law. 7. The learned Appellate Court has, however, allowed the appeal preferred by the defendants while disagreeing with the findings of the learned Trial Court on prima facie case, balance of convenience, and irreparable injury. The learned Appellate Court has observed that as on 10.05.2001, the said Shri Lal Singh was in possession of the land in question and he was dispossessed by Panchayat after following the requisite procedure and only the material lying at the site was handed over to the plaintiff. While finding that the plaintiff has no title over the land in question nor has been able to show his possession before 10.05.2001, the learned Appellate Court has observed that the plaintiff cannot be said to be in bona fide possession of the land in question; and, has set aside the order passed by the learned Trial Court with the observations that the defendants would be free to take proceedings in relation to the land in question after adopting due legal process under the Panchayati Raj Act. 8. 8. Assailing the order aforesaid, it has strenuously been contended by the learned counsel appearing for the plaintiff petitioner that the learned Appellate Court has erred in not considering the finding of the learned Trial Court and has proceeded to interfere with the discretionary order passed by the learned Trial Court without any justification. Learned counsel submitted that from the material available on record, possession of the plaintiff-petitioner on the land in question remains indisputable; and such possession of the petitioner deserves to be maintained during the pendency of the suit else he would suffer irreparable injury. Learned counsel further submitted that the very fact that the stones and boulders lying at the site after removal of encroachment of Lal Singh were handed over to the plaintiff-petitioner fortifies the submission that the petitioner was in possession of the land else such material at the site could not have been delivered to him. Learned counsel submitted that in this writ petition status quo was ordered to be maintained by the order dated 29.10.2007 and while the trial of the suit is progressing, such status quo order may be continued in the interest of justice. Learned counsel appearing for the respondents Nos. 3 & 4 has opposed with the submissions that the petitioner is a rank trespasser and is not entitled for any injunction. During the course of hearing of this writ petition, apart from the material produced on record, the patta of Shri Laxman Singh (brother of the petitioner) and the proceedings in removal of encroachment of Shri Lal Singh as maintained by the respondent Gram Panchayat and as shown by the learned counsel for the respondent have also been perused. 9. Having given a thoughtful consideration to the entire matter, this Court is unable to find any reason to interfere with the order passed by the learned Appellate Court. 10. The claim for temporary injunction as made by the plaintiff-petitioner does not inspire confidence, particularly when viewed in the light of the fact that earlier in the year 2001 the plaintiff was amongst the complainants who stated that Lal Singh s/o Bheem Singh had encroached over a piece of land near the canal and had also obstructed the way towards the residence of Laxman Singh s/o Sadul Singh. The said encroachment of Lal Singh was shown at the land adjoining the land of Laxman Singh. The said encroachment of Lal Singh was shown at the land adjoining the land of Laxman Singh. Laxman Singh is none other than the brother of the plaintiff-petitioner Chhagan Singh. The significant aspect of the matter remains that even when the petitioner made such a complaint against Lal Singh in the year 2001 and Lal Singh's encroachment was removed, it was nowhere brought on record that otherwise the petitioner had been in possession at the land in question or at any part thereof or even at any other adjoining piece of land. Merely because some material as available at the site after removal of encroachment of Lal Singh was delivered in possession of the plaintiff (he being one of the complainants), that cannot by itself lead to the inference that the plaintiff had otherwise been in settled possession of the land in question. 11. Then, the plot of land allotted to Laxman Singh under the patta dated 15.04.1999 is shown situated towards eastern side of the canal and it appears that Lal Singh's encroachment had been towards northern side of Laxman Singhs plot. The salient feature remains that possession of the plaintiff has not been shown at any of the four boundaries of the land allotted to Laxman Singh. The case of the petitioner in the present proceedings has been that Laxman Singh's land is adjacent to the land in dispute. Prima facie, such assertion of the plaintiff does not inspire confidence looking to the boundaries as stated in the patta of Laxman Singh. 12. For the plaintiff having not been able to show any title over the land in question, for his having not been able to establish possession for 40 years as claimed, and for the significant features and aspects as noticed above, the prayer for temporary injunction as made by the petitioner was required to be rejected; and there appears no reason to consider any interference at the instance of the petitioner in the order as passed by the learned Appellate Court whereby the defendants have been permitted to proceed in accordance with law. 13. This writ petition remains bereft of substance and is, therefore, dismissed with costs quantified at Rs. 2,200/-.Writ Petition Dismissed. *******