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2008 DIGILAW 2272 (RAJ)

Mohan Lal v. Mohabata Ram

2008-09-27

SANGEET LODHA

body2008
JUDGMENT 1. - This writ petition is directed against order dated 09.06.2008 passed by the District Judge, Bikaner, in Civil Appeal Order No. 60/2008, whereby the appeal preferred by the petitioner-plaintiff against an order dated 31.05.2008 passed by the Civil Judge (S.D.) No. 1, Bikaner, rejecting the application under Order 39, Rule 1 & 2 preferred by him, has been affirmed. 2. The plaintiff-petitioner preferred a suit against the defendant-respondent seeking permanent and mandatory injunction to the effect that he may not be dispossessed from the land in question and in case, he is dispossessed, then, the defendant-respondent may be directed to hand over the possession of the land to the plaintiff-petitioner. 3. The plaintiff-petitioner claimed to be in possession of the land situated at Sangalpura District Bikaner, which stands regularised in his favour by the Urban Improvement Trust (in short 'UIT" hereinafter), Bikaner. It is submitted that the patta of the land has been issued in his favour by the UIT on 12.03.2003. Besides, the plaintiff-petitioner claims possession over yet another piece of the land adjoining to the land, which already stands regularised in his favour, as aforesaid. It is submitted that he has already preferred an application for regularisation of his possession over the aforesaid adjoining land is well and the requisite regularisation charges have also been deposited. It is further submitted that there exists a plot adjoining to the plaintiffs plot, which belongs to his maternal uncle, who intend to encroach upon the land for which the plaintiff-petitioner has already applied for regularisation.In these circumstances, the plaintiff-petitioner preferred the suit, seeking permanent and mandatory injunction, as aforesaid and also filed an application for temporary injunction under Order 39, Rule 1 &2 of CPC. 4. After due consideration, the application preferred by the plaintiff-petitioner was rejected by the learned trial court vide order dated 31.05.2008 and the appeal preferred against the said order also failed, hence this petition. 5. The Learned Counsel submitted that the petitioner was in possession of the plot in question and his possession was regularised by the UIT, Bikaner, and even according to the report submitted by the Commissioner, appointed by the court, the petitioner-plaintiff is in possession of the plot in question, inspite of that ignoring the material on record, the learned trial court has seriously erred in rejecting the application preferred by the petitioner under Order 39, Rule 1 & 2 CPC. The Learned Counsel submitted that in view of the possession of the plaintiff-petitioner over the land in question, there was strong prima facie case in his favour. The Learned Counsel submitted that the plaintiff-petitioner is in possession of the land therefore, the balance of convenience is also in favour of the plaintiff-petitioner and if he is dispossessed from the land in question forcibly, then, obviously, he will suffer irreparable loss. 6. Per contra, the Learned Counsel appearing on behalf of the defendant-respondent submitted that the land which was in possession of the plaintiff-petitioner, already stands regularised in his favour and as a matter of fact, he has made an attempt to encroach upon the land which is in possession of the defendant-respondent. The Learned Counsel submitted that the dispute having been arisen between the plaintiff-petitioner and defendant-respondent, a settlement was arrived at and accordingly an application was submitted by the plaintiff-petitioner and defendant-respondent jointly before the Secretary, UIT, Bikaner, wherein, it was agreed upon that the land measuring 115 feet north-south, 38 feet east and 32 feet west may be regularised in favour of the plaintiff-petitioner and the remaining land shall be regularised in favour of the defendant-respondent. The Learned Counsel submitted that in terms of the compromise the land with the aforesaid measurement has already been regularised in favour of the plaintiff-petitioner, thereafter, with an dishonest intention, retracting from the settlement arrived at the present suit has been preferred by the plaintiff-petitioner claiming possession over some portion of the remaining land, which is in exclusive possession of the defendant-respondent. The Learned Counsel submitted that before filing of the present suit, yet another suit being No. 462/2001, was preferred by the plaintiff-petitioner against the defendant-respondent before the Civil Judge (J.D.), Bikaner, which stands dismissed by the learned trial court, vide judgment and decree dated 27.10.2006, therefore, as a matter of fact, fresh suit preferred by the plaintiff-petitioner is barred by principle of res judicata. The Learned Counsel submitted that the plaintiff-petitioner has deliberately suppressed all these material facts to mislead this Court, therefore the conduct of the plaintiff-petitioner disentitles him from invoking the writ jurisdiction of this Court. 7. I have considered the rival submissions and perused the record. 8. The Learned Counsel submitted that the plaintiff-petitioner has deliberately suppressed all these material facts to mislead this Court, therefore the conduct of the plaintiff-petitioner disentitles him from invoking the writ jurisdiction of this Court. 7. I have considered the rival submissions and perused the record. 8. A perusal of the settlement arrived at between the plaintiff-petitioner and defendant-respondent placed on record as Annexure-3 reveals that it was agreed upon between them that the land measuring north-south 115-115 feet and east 38 feet and west 32 feet, was handed over to the plaintiff-petitioner Shri Mohanlal and it was agreed upon that his possession over the land may be regularised and the defendant-respondent shall be entitled for regularisation of the remaining land in his favour. Accordingly, a joint application was preferred by the plaintiff-petitioner and defendant-respondent before the Secretary, UIT, Bikaner, for regularisation of the land in terms of the settlement arrived at.On being pointedly asked by this Court, the Learned Counsel for the plaintiff-petitioner has not denied the factum of settlement so also the fact that in terms of the settlement arrived at the land with aforesaid measurement stands regularised in favour of the plaintiff-petitioner. 9. It is to be noticed that after due consideration of entire material on record, both the courts below have arrived at a categorical finding that the plaintiff-petitioner has no title over the land in question and he cannot be said to be in possession of the land except the land covered by the patta issued in his favour. 10. The learned courts below have rightly held that the Commissioner was required only to submit the position of the land existing at the site and he could not have given an opinion regarding the possession of the parties to the suit. Moreover, a suit for permanent injunction preferred by the plaintiff-petitioner against the defendant-respondent earlier, has already been dismissed by the court of competent jurisdiction, therefore, the learned courts below have committed no error in holding that the plaintiff-petitioner has not been able to establish a prima facie case in his favour. 11. In considered opinion of this Court, the concurrent finding arrived at by the courts below does not suffer from any infirmity, illegality or irregularity warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 12. 11. In considered opinion of this Court, the concurrent finding arrived at by the courts below does not suffer from any infirmity, illegality or irregularity warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 12. It is pertinent to note that a suit preferred by the plaintiff-petitioner seeking permanent injunction against the defendant-respondent in regard to the land in question, has already been dismissed by the court of competent jurisdiction, however, this material fact has been suppressed by the plaintiff-petitioner. That apart, the facts regarding the settlement arrived at between the parties has also not been disclosed by the plaintiff-petitioner in the writ petition. Thus, the writ petition also deserves to be dismissed on account of suppression of material facts by the plaintiff-petitioner. 13. In the result, the writ petition fails, it is hereby dismissed with cost, quantified at Rs. 3,000/-.Writ petition dismissed. *******