JUDGMENT : Arun Bhansali, J. 1. This appeal under Order 43, Rule 1 (r) CPC is directed against the order dated 4.5.2016 passed by the Addl. District Judge No. 1, Chittorgarh, whereby, the application filed by the appellants-plaintiffs under Order 39, Rule 1 & 2 CPC read with Section 151 CPC has been rejected. 2. The appellants filed a suit for declaration and permanent injunction against the respondents inter-alia with the averments that the appellants were part of about 300 or more families, which were in possession of the land in question, the residents therein were all voters of Ward No. 28, the electricity connection and drinking water pipelines have been given/established and a primary school is also functioning in the area. It was alleged that the District Collector without due process of law, on 23.12.2003 allotted land ad measuring 6.73 hectares comprised in Araji No. 1228 under the provisions of Rajasthan Land Revenue (Allotment of Unoccupied Government Agricultural Lands for construction of Schools, Colleges, Dispensaries, Dharamshalas and other Building of Public Utility) Rules, 1963 ('the Rules'), which allotment was contrary to the Rules. It was claimed that if the allotment was not set aside, the same would affect the residents of the area inasmuch as they were sought to be dispossessed by the police authorities, who have been allotted the land in question. Based on the said averments, the declaration was sought that the allotment dated 23.12.2003 was against the law, permanent injunction against eviction of 300 families from the land in question and regularisation of plaintiffs' possession. Along with the suit, an application seeking temporary injunction was filed by the appellants-plaintiffs. 3. A reply to the application was filed by the respondents inter-alia indicating that earlier Civil Original Suit No. 20/11 was filed which has been decided on 26.8.2011 and has been dismissed, the land in question has been allotted under the provisions of the Rules of 1963 to the Police Department for construction of residential houses and the same has been mutated in the revenue record and possession has also been handed over to the Police Department, at which point of time there were no encroachments. 4. 4. Reply was also filed by the Municipal Council inter-alia indicating that the applicants have no right to file a suit and as the encroachments have been made on the land allotted to the Police Department, they have right to clear the encroachments and the applicants were not entitled to any regularization. 5. After hearing the arguments of the counsel for the parties, the trial court came to the conclusion that there was no prima facie case in favour of the applicants. The issue of res judicata on account of dismissal of earlier suit would be subject matter of main suit and as the applicants have no right to the land in question, they have no prima facie case. The issue pertaining to balance of convenience, irreparable injury were also held against the applicants and consequently the application was dismissed. 6. It is submitted by learned counsel for the appellants that the trial court committed an error in dismissing the application filed by the applicants. It was submitted that the applicants are in possession of the land in question and the allotment made to the Police Department is contrary to the provisions of the Rules, the issue pertaining to the maintainability of the suit, though has been held by the trial court to be adjudicated at the time of decision of the suit, no interim direction has been granted to the applicants resulting in grave injustice to the applicants and, therefore, the order impugned deserves to be set aside. It was submitted that the trial court without adverting to the material placed by the applicants about their possession over the land in question, merely based on the submissions of the respondents, have recorded the finding qua prima facie case and on that count also the order impugned deserves to be set aside. It was prayed that the applicants be accorded protection against the forceful dispossession from the land in question. 7. I have considered the submissions made by counsel for the appellants and have perused the material available on record. 8. On the directions of the Court, the copy of the plaint in present suit & Civil Original Suit No. 20/11 have been filed. A bare perusal of the earlier suit filed by the appellants reveals that the said suit was a simple suit for permanent/mandatory injunction with identical averments questioning the allotment made to the Police Department. 8. On the directions of the Court, the copy of the plaint in present suit & Civil Original Suit No. 20/11 have been filed. A bare perusal of the earlier suit filed by the appellants reveals that the said suit was a simple suit for permanent/mandatory injunction with identical averments questioning the allotment made to the Police Department. However, the suit was rejected by the trial court by its judgment dated 26.8.2013 inter-alia holding the suit as not maintainable on account of the fact that simple suit for injunction was not maintainable. 9. It appears that the present suit was filed seeking to challenge the allotment dated 23.12.2003 made in favour of the Police Department and seeking a declaration qua the said order. However, no declaration seeking to establish the right of the plaintiffs to remain in possession of the land in question and/or establishing their right to challenge the allotment made to the Police Department was sought. The trial court did not find any prima facie case in favour of the applicants as already noticed hereinbefore. Even before this Court the entire emphasis of the learned counsel for the appellants has been the so called possession of the applicants and the fact that as the suit has been filed, irrespective of its substance and/or maintainability and/or the fact whether the applicants have any right to remain in possession or not, the trial court should have granted injunction against dispossession of the applicants. The said submission made by the counsel for the appellants cannot be countenanced and is against the basic principles of law inasmuch as while examining the prima facie case, while considering the application under Order 39, Rule 1 and 2 CPC, the substance of the plea raised, maintainability of the suit and rights of the parties, if any, have to be prima facie looked into and if the answer to the same is in negative, irrespective of the fact that the party may be in possession, it would not be entitled to protection merely because a suit has been filed by the plaintiffs and the suit cannot be rejected while deciding the prima facie case in an application filed under Order 39, Rule 1 & 2 CPC. 10. 10. Having examined the submissions made and the fact that the appellants have failed to make out any case to remain in possession of the land in question, even if they were in possession of the land, the finding recorded by the trial court does not call for any interference. In view of the above, there is no substance in the appeal, the same is, therefore, dismissed.