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2013 DIGILAW 1060 (RAJ)

Shyam Lal v. Budhi Prakash

2013-05-22

VIJAY BISHNOI

body2013
JUDGMENT 1. - This writ petition has been preferred by the petitioner, while challening the order dated 06.11.2012 passed by the learned District Judge, Churu (for short 'the appellate court' hereinafter), in Appeal No.35/2011, whereby the learned appellate court has rejected the application and declined to interfere with the order dated 05.08.2011 passed by Civil Judge (Jr.Div.), Churu (for short 'the trial court' hereinafter), whereby the trial court had decided the application for temporary injunction under Order 39 Rule 1 and 2 CPC preferred on behalf of respondent No.1 Budhi Prakash along with a suit for permanent injunction. 2. Brief facts of the case are that respondent No. Budhi Prakash had filed a suit for permanent injunction with a prayer that a residential house is situated at village Sahanali Chhoti Tehsil and District Churu, in which respondent No.1 and his brothers and other family members are residing in their respective portions since 1995 but now the other defendants are trying to take the possession of the portion forcibly in which the plaintiffs reside and, therefore, they may be restrained from dispossessing the petitioner from the portion, which is in his possession. Along with the suit for permanent injunction, an application under Order 39 Rules 1 and 2 read with section 151 CPC has also been preferred by the respondent No.1. A reply to the application under Order 39 Rule 1 and 2 CPC was filed on behalf of the defendants and it was contended that the defendants are not going to dispossess the plaintiff from the portion, which is in his possession and marked with orange colour in the map annexed with the suit. When the application for temporary injunction preferred by the respondent No.1 came up before the trial court for consideration, the counsel for the defendants has specifically admitted that the respondent No.1 is in possession of the portion marked with orange colour in the map and the defendants have no intention to dispossess him from the said portion. 3. On the basis of the statement given on behalf of the defendants, the learned trial court passed the order that till the disposal of the suit preferred by respondent No.1, the defendants will not dispossess the respondent No.1 from the portion marked with orange colour in the map and will also not disturb the peaceful possession of the respondent No.1. 4. 4. Out of the fourteen defendants, only petitioner had filed an appeal before the learned appellate court against the order dated 05.08.2011 passed by the trial court and contended that the learned counsel for the defendants has wrongly stated before the trial court that respondent No.1 is in possession of the land in question since long and the defendants are not going to dispossess him from the portion, which is in his possession. 5. The learned appellate court, after hearing the parties, has rejected the appeal preferred on behalf of the petitioner, while observing that the same Advocate, who had made the statement before the learned trial court has also filed this appeal and agreed before the appellate court also that the respondent No.1 is in possession of the portion marked with orange colour in the map and the defendants have no intention to dispossess the respondent No.1 from the said portion. After observing this, the learned appellate court has observed that even on merits, the possession of the plaintiffs is liable to be protected and, therefore, the learned appellate court has declined to interfere with the order passed by the learned trial court. 6. The learned counsel for the petitioner has reiterated that the learned counsel for the defendants before the learned trial court as well as the learned appellate court had wrongly given the statement regarding position of the possession of the respondent No.1 and also wrongly stated that the defendants were never intended to dispossess the respondent No.1, therefore, the learned counsel for the petitioner has submitted that the impugned orders passed by both the courts below are illegal and based on wrong statement given by the learned counsel for the defendants for which he was not authorised and, has, therefore, prayed that the impugned orders may be quashed and set aside. 7. This Court has taken into consideration the submissions made by the learned counsel for the petitioner and also taken into consideration the impugned orders. 8. From perusal of the impugned orders, it is clear that the learned courts below have taken into consideration the averments made in the reply to the application for temporary injunction filed on behalf of defendants as well as the statements made by the counsel for the defendants and, thereafter, passed the impugned orders. 8. From perusal of the impugned orders, it is clear that the learned courts below have taken into consideration the averments made in the reply to the application for temporary injunction filed on behalf of defendants as well as the statements made by the counsel for the defendants and, thereafter, passed the impugned orders. From perusal of the reply to the application for temporary injunction (Annexure-2) along with the writ petition, it is clear that the defendants, in para No.7, have specifically admitted that they have never tried to dispossess the plaintiff from his residential house. In the reply, the defendants have agreed that the plaintiff is having ⅛th share in the house and they are ready to give the same to the respondent No.1. In view of the categorical statement made by the defendants, it cannot be said that the learned courts below have committed any illegality in passing the impugned orders.Consequently, there is no force in this petition and the same is, hereby dismissed.Petition Dismissed. *******