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2009 DIGILAW 400 (RAJ)

Khoob Lal v. Mahaveer

2009-02-06

PRAKASH TATIA

body2009
Hon'ble TATIA, J.—Heard learned counsel for the parties. 2. The petitioners/plaintiffs filed suit for injunction for the lands of khasra nos.62 and 63 alleging therein that the land of khasra no.62 is land of way and land of khasra no.63 is abadi land where the defendants/respondents want to encroach upon and want to raise construction. The plaintiffs claimed relief of injunction by filing the suit under Section 91 CPC. It is submitted by the plaintiffs that in the earlier round of litigation, the defendants took the plea that they are owners of the land of khasra no.59 and 61 by virtue of the patta in their favour. They lost that battle upto Hon'ble Supreme Court, then they tried to encroach upon the land of khasra nos.62 and 63, then the plaintiffs filed the suit for injunction. 3. The trial court found prima-facie case in favour of the plaintiffs and granted injunction vide order dated 6.2.2008 and directed both the parties to maintain status quo. The order dated 6.2.2008 was challenged by preferring appeal. The appellate court set aside the trial court's order dated 6.2.2008 and rejected the plaintiffs' application for grant of injunction vide its order dated 20.10.2008. 4. The appellate court was of the view that from the documents placed on record, it is clear that the land of khasra no.62 is land of way and the defendants admitted that they are not encroaching nor they are raising any construction. So far as land of khasra no.63 is concerned, that has not been proved to be land of way or government land only. Apart from it, the first appellate court was of the view that one of the plaintiffs Ramesh Kumar wrote letters dated 25.1.2008 and 28.1.2008 wherein he claimed his possession over the land in dispute by saying that he is in possession of the land since times of his ancestors. He is keeping his cattle and also his goods are lying on the said land. Contrary to it, in the suit, it is stated that the land is government land. These two documents were not considered by the trial court and, therefore, the first appellate court interfered in the said order. 5. He is keeping his cattle and also his goods are lying on the said land. Contrary to it, in the suit, it is stated that the land is government land. These two documents were not considered by the trial court and, therefore, the first appellate court interfered in the said order. 5. The first appellate court also considered the orders passed by this Court, which according to learned counsel for the petitioners, were upheld by the Hon'ble Apex Court and thereafter, examined the area of the plot which appears to be about50 ft. x 75 ft. and is near to way i.e. near the land of khasra no.62. On these facts, the appellate court found that the plaintiffs have not disclosed the true and correct facts and they tried to seek relief in getting the land in their favour but filed the suit for injunction against the defendants. Therefore, they have not come with clean hands. 6. On 11.11.2008, the petitioners submitted additional affidavit with certain documents and in those documents, there is a map Ex.7 and list of various lands showing their nature and area. 7. Learned counsel for the petitioners submitted that the first appellate court committed serious error of law in allowing the appeal of the defendants and relied upon the judgment of this Court delivered in the case of Representative Aam Janta, Village Berdo Ka Bas & Anr. vs. Gramin Vikas Vigyan Samiti, Jelu Gagadi & Ors. reported in 2006(3) RDD 1452 (Raj.) in which this Court reached to the conclusion that at the stage (at the time of grant of injunction), none of the parties can be permitted to alter the position of the land and this court directed both the parties to maintain status quo. Learned counsel for the petitioners also relied upon another judgment of this Court delivered in the case of Vinay Kumar vs. Devi Lal and others reported in 2006 WLC (Raj.) UC 483 = RLW 2006(2) Raj. 1441 wherein two parties were disputing for the boundaries of the plot and in such cases, two courts committed error by not ordering status quo. 8. 1441 wherein two parties were disputing for the boundaries of the plot and in such cases, two courts committed error by not ordering status quo. 8. Learned counsel for the respondents heavily relied upon two letters dated 25.1.2008 and 28.1.2008 written by Ramesh Kumar as well as the documents produced by the petitioners before this Court which is map Annex.7 and list of lands showing their nature Annex.8 wherein the land of khasra no.63 has been shown as gair mumkin abadi and map clearly shows that by its location and its length and breadth, the land of khasra no.63 could not have been land of way or land of public utility. Learned counsel for the respondents submitted that in view of the fact that the first appellate court has considered the facts and this Court while exercising jurisdiction under Article 227 of the Constitution of India (which is supervisory) may not interfere in the impugned order. 9. I considered the submissions of learned counsel for the parties, considered the facts of the case and also perused the reasons given by the two courts below. 10. The first appellate court considered the reasons given by the trial court in detail with reference to the nature of land, its measurement and patta set up by the defendants as well as with reference to the order passed by the courts in the earlier round of litigation and thereafter, considered the documents – letters dated 25.1.2008 and 28.1.2008 written by one of the plaintiffs and these letters were not considered by the trial court. It appears that the trial court proceeded on wrong assumption while calculating the area of the land. The land in question i.e. land of khasra no.63 is land measuring 4 bighas and which comes to area about 3873 sq.yards which may be just nearer to 3700 sq.yards which is the area given in the patta of the defendants as stated. 11. In the totality, there is no jurisdictional error in the order passed by the appellate court reversing the order of the trial court and it is not a fit case where this Court should exercise its supervisory jurisdiction under Article 227 of the Constitution of India. 12. 11. In the totality, there is no jurisdictional error in the order passed by the appellate court reversing the order of the trial court and it is not a fit case where this Court should exercise its supervisory jurisdiction under Article 227 of the Constitution of India. 12. So far as khasra no.62 is concerned, for that there appears to be no dispute because of the reason that the defendants are admitting that it is the land of way and they are not raising construction on that land. 13. In view of the above, there is no merit in the writ petition and the same is hereby dismissed.