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2015 DIGILAW 1844 (RAJ)

Mahaveer Raj Porwal v. Smt. Laxmi

2015-11-02

VIJAY BISHNOI

body2015
JUDGMENT 1. - This appeal has been filed by appellants being aggrieved with the order dated 09.07.2015 passed by District Judge, Jalore (for short 'the trial court' hereinafter) in Civil Misc. Case No. 15/2011, whereby the application filed by the appellants under Order 39, Rule 1 and 2 read with section 151 CPC has been dismissed. 2. The appellants have filed a suit for recovery of possession and permanent injunction against the respondents before the trial court and along with the suit, an application under Order 39, Rule 1 and 2 CPC is also filed praying that the respondents be restrained from raising constructions on the disputed plots and from alienating the said property to any other person and they be also directed to maintain status quo in respect of the said property. 3. The appellants have claimed that in village Siyana Bera, Javadiya for the land ad measuring 1,52,262 square yards, a patta was issued by the then Jagirdar in favour of Nathmal Phool Chand and Kapur Chand Jethmal and in the said land, the appellants being their heirs were having their 1/2 share. It is contended that the respondent Nos. 1, 2 and 3 and respondent Nos. 8 and 9 have no right over the property in question but they encroached upon the land of the appellants and also put stone slabs and also fixed fencing on the said land. The appellants have, therefore, prayed that till the disposal of the suit, respondents be restrained, by way of temporary injunction, from raising any construction on the said land and from alienating the said property to any other person and they be directed to maintain status quo. 4. The claim of the appellants was contested by the respondent Nos. 1 and 2 and they have claimed that property in question i.e. two plots were purchased by them through registered sale deed and they are in possession of the same since their purchase. The respondent No. 2 has also disputed the ownership of the appellants over the property in question. 5. 1 and 2 and they have claimed that property in question i.e. two plots were purchased by them through registered sale deed and they are in possession of the same since their purchase. The respondent No. 2 has also disputed the ownership of the appellants over the property in question. 5. The trial court after taking into consideration the arguments of both the parties as well as the documentary evidence produced by the parties has refused to grant temporary injunction in favour of the appellants and against the respondents and dismissed the application filed by the appellants under Order 39, Rule 1 and 2 read with section 151 CPC while observing that the appellants have failed to prove prima facie case in their favour. 6. Assailing the order dated 09.07.2015, counsel for the appellants has argued that by producing two sale deeds, in relation to the plots situated adjacent to the property in question, the appellants have sufficiently proved that two plots are the parts of the land ad measuring 1,52,262 square yards for which patta was issued in favour of ancestor's of the appellants, however, the learned trial court without appreciating the documents in right perspective has erred in observing that the appellants have prima facie failed to prove that the property in question is part of the residential patta issued in favour of their ancestors way back in the year 1948. 7. Learned counsel for the appellants has further argued that if the respondents are not restrained, by way of temporary injunction, the nature of the property in question would be changed and the appellants would suffer irreparable losses, therefore, the impugned order may kindly be set aside and the application filed by the appellants before the learned trial court for granting temporary injunction be allowed. 8. Heard learned counsel for the appellants and perused the impugned order. 9. The appellants have claimed right over the property on the basis of patta alleged to have been issued for land ad measuring 1,52,262 square yards in the year 1948 by the then Jagirdar in favour of ancestors of the appellants. 10. The trial court has considered the said patta and observed that no Khasra numbers have been mentioned in the patta and it is not established that the land measuring about 1,52,262 square yards is situated in the same Khasra number in which, the disputed property is situated. 10. The trial court has considered the said patta and observed that no Khasra numbers have been mentioned in the patta and it is not established that the land measuring about 1,52,262 square yards is situated in the same Khasra number in which, the disputed property is situated. The trial court has also observed that the respondent Nos. 1 and 2 have purchased the property in question through registered sale deeds and before the execution of said registered sale deeds, objections were invited by the authorities concerned but when no objection was filed by the appellants or anybody else and the sale deeds were executed. The trial court has further observed that from the documentary evidence produced by the appellants prima facie it is not established that the property in question is the part of the residential patta issued in favour of the ancestors of the appellants in the year 1948. After observing this, the trial court has held that no case is made out in favour of the appellants and, therefore, temporary injunction cannot be issued in their favour and against the respondents. 11. When the appellants have prima facie failed to establish that the property in question is the part of the residential patta issued in favour of the ancestors way back in the year 1948 and when the respondent Nos. 1 and 2 have prima facie established before the trial court that the property in question was purchased by them through registered sale deeds, I am of the opinion that the trial court has not committed any illegality in rejecting the application filed by the appellants for issuing temporary injunction in their favour and against the respondent. 12. Hence, no interference is called for in this appeal and the same is hereby dismissed.Stay petition also stands dismissed.Appeal Dismissed. *******