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2017 DIGILAW 1703 (RAJ)

Prahalad v. Prem Devi

2017-08-01

GOVERDHAN BARDHAR

body2017
JUDGMENT : Goverdhan Bardhar, J. This Misc. Appeal under order 43 Rule 1 (R) of CPC has been filed against the order dated 28.01.2017 passed by the Additional District Judge, Shrimadhopur in Civil Misc. Case No. 40/2014 whereby the application of the plaintiff/appellant for temporary injunction filed Order 39 Rules 1 & 2 CPC has been dismissed. 2. The brief facts of the case are that the plaintiff/appellant has filed a suit for specific performance of a contract stating that the defendant/respondent No.1 who is khatedar-tenant of land comprising in Khasra No.815 measuring 0.82 hectare situated in Village Thoi, Tehsil Srimadhopur got converted 0.20 hectare land from agricultural land to Abadi land out of 0.82 hectare. The plaintiff/appellant further stated that remaining land of 0.62 hectare of khasra No. 815/2 was recorded in the revenue record. 3. The plaintiff/appellant further stated that the defendant/respondent No.1 had sold her remaining 0.62 hectare of Khasra No. 815/2 to him vide agreement to sale dated 29.07.1995 for a sale consideration of Rs. 1,00,000/- and also executed an agreement to sale in his favour and after purchasing the land, the plaintiff is in peaceful possession over the land. The plaintiff/appellant filed an application under Order 39 Rules 1 & 2 CPC for temporary injunction against the defendants/respondents to the effect that respondents shall not interfere with the peaceful possession over the suit land and they may be restrained form dispossessing or alienating the suit land to others in any manner till disposal of the suit. 4. Counsel for the appellant has argued that the court below has committed an illegality by ignoring the fact that the Local Commissioner who prima facie established the possession of the plaintiff and the fact that he has got constructed his residential house, shops and saw mill over the disputed land and is in possession since 1995. Hence the learned trial court committed an error in rejecting the application for temporary injunction. 5. Per contra, counsel for the respondent No.1-caveator has opposed the arguments advanced by learned counsel for the appellant and supported the impugned order. 6. I have heard the counsel for the parties and perused the relevant material placed before me. 7. Hence the learned trial court committed an error in rejecting the application for temporary injunction. 5. Per contra, counsel for the respondent No.1-caveator has opposed the arguments advanced by learned counsel for the appellant and supported the impugned order. 6. I have heard the counsel for the parties and perused the relevant material placed before me. 7. While deciding the application for temporary injunction, the court below has observed that the defendant/respondent No.1 has challenged the agreement to sale dated 02.04.2013 alleging the same as forged, for which criminal case is pending, whereas the another agreement to sale dated 29.07.1995, which is in respect of agricultural land is void in view of section 42(b) of the Rajasthan Tenancy Act. In respect of 0.62 hectare of land comprising in Khasra no.815, proceedings under section 183 B of Rajasthan Tenancy Act has been filed in which the Tehsildar Srimadhopur has declared the agreement dated 29/7/1995 void abinito as it is against law and against the intention of law and the plaintiff has been directed to be evicted from the land of .62 hectares vide order dated 16/6/2014 and after that on 17/6/2014, the present suit has been filed. The learned court below has also observed that when the disputed land has already made subject matter of the revenue court under the provisions of section 256 of Rajasthan Tenancy Act, the suit filed by the plaintiff is not maintainable. In my view, the court below has not committed any error or illegality in rejecting the application for temporary injunction. 8. Consequently, the appeal being devoid of merit is hereby dismissed.