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2018 DIGILAW 590 (RAJ)

Ashok Chand Oswal Burad v. Municipality, Phalodi

2018-02-20

PUSHPENDRA SINGH BHATI

body2018
ORDER : Pushpendra Singh Bhati, J. This writ petition has been preferred with the following prayers: "1. By an appropriate writ, order or direction, the order passed by the learned Trial Court i.e. by learned Senior Civil Judge, Phalodi dated 16.01.2018 (Annex.5) in case No. 8/2018 may kindly be declared illegal and be quashed and set aside. 2. By an appropriate writ, order or direction, the order passed by the learned Appellate Court i.e. by learned ADJ, Phalodi, District Jodhpur dated 03.02.2018 (Annex.-7) in Appeal No. 02/2018 may kindly be declared illegal and be quashed and set aside. 3. By an appropriate writ, order or direction, the respondent be restrained to take any coercive measures and maintain the status quo till the final disposal of application under Order 39, Rule 1 and 2 of the CPC. 4. By an appropriate writ, order or direction, the respondent be restrained to take over the possession of the land in question situated in Southern side of Phalodi-Pokran Road, District Jodhpur and if during the pendency of the writ petition, there is some action taken by the respondent with regard to the demolition of the property, the same may kindly be restored in favour of the petitioner. 5. Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner." 2. Learned counsel for the petitioner states that petitioner preferred a civil suit for permanent injunction along with an application under Order 39, Rule 1 and 2 of the CPC seeking direction against the respondent to take any coercive measures to dispossess him from the property in question situated in the Southern Side of Phalodi-Pokran Road. The notices were issued in the suit and the matter was argued for ad interim injunction and the ad interim order was refused by the learned Court below vide order dated 16.01.2018. The petitioner preferred an appeal under Order 43, Rule 1 of the CPC but the same has also been dismissed by the learned Appellate Court on 03.02.2018. 3. The notices were issued in the suit and the matter was argued for ad interim injunction and the ad interim order was refused by the learned Court below vide order dated 16.01.2018. The petitioner preferred an appeal under Order 43, Rule 1 of the CPC but the same has also been dismissed by the learned Appellate Court on 03.02.2018. 3. Learned counsel Shir Manoj Bhandari has harped upon the part that the said plot in question was situated in Southern side of road measuring 101 X 101 Yards and the patta for the said plot was issued by the erstwhile State of Rajasthan in Vikram Samvat 1890 in the name of Dadha Sultanchand given to Badarchand Motichand Sultanchand. Learned counsel for the petitioner has further drawn attention of this Court to the Bahi of the said patta is on record. 4. Learned counsel for the petitioner has stated that possession on the property in question is undisputed and once the said possession in Khasra No. 573 was there then the respondent could have dispossessed the petitioner and demolished the structure raised by him until the validity of the possession and title was decided by the competent Court. 5. Thus, learned counsel for the petitioner has tried to impress upon this Court that once the possession was settled then the same shall stand protected even against the actual owner until the competent Court decides the issue. Learned counsel for the petitioner has further submitted that the respondent are trying to evict him and continue with a public project which shall cause irreparable damage to the petitioner apart from being a clear case of balance of convenience in his favour. 6. Learned counsel for the respondent submitted that the Court below has rightly recorded that the original patta is possessed by the petitioner. Learned counsel for the respondent has further stated that the document on record is only a Bahi of the patta which does have the signatures of the issuing authority or the date when the patta was issued. 7. Learned counsel for the respondent has further stated that Bahi is not an authenticated document and the petitioner has failed to produce even bare minimum title before the learned Court below to establish his case. 7. Learned counsel for the respondent has further stated that Bahi is not an authenticated document and the petitioner has failed to produce even bare minimum title before the learned Court below to establish his case. Learned counsel for the respondent has further shown that the land in question of Khasra No. 573 has been entered as a Gair Mumkin Pal and has been recorded in the Jamabandi to be in owner-ship of the Municipal Council from Samvat 2070 to 2073. Learned counsel for the respondent has further shown the trace map which shows that there is electric facility and water facility available but the petitioner has neither of the facility in his so claimed possession. 8. Learned counsel for the respondent has also pointed that as per Tehsildar report on 05.07.2008, the public land has already been allotted to the Krishi Sabji Mandi and Milk Man Colony and as per the Tehsildar report there was no indication of any kind of possession being held by any person. Learned counsel for the respondent has further argued that a public notice was served through the newspaper on 03.07.2008 and if anybody had any stakes in the concerned Khasra No. 573 of the land in question then the stakeholder should have filed an objection. 9. After hearing counsel for the parties and perusing the record of the case, this Court finds that in the limited jurisdiction of Article 227 of the Constitution of India, this Court ought not to travel beyond a limited point. The impugned order records that the petitioner has no title document. The impugned order further records that the Municipal Council is having its owner-ship as per the Jamabandi from 2070 to 2073. The impugned order also records that the land in question is recorded as a Gair Mumkin Pal. The impugned order also records the Tehsildar report dated 05.07.2008 as per which there is no possession of any person and the land in question has already been demarcated as a Krishi Sabji Mandi and Milk Man Colony. The impugned order also categorically mentions that the petitioner is not having any possession over the said land and neither the title. The impugned order also records the public notice published by the Municipal Council on 03.12.2008 regarding the Khasra No. 573 and no objection to the same by the petitioner has been apparently filed. The impugned order also categorically mentions that the petitioner is not having any possession over the said land and neither the title. The impugned order also records the public notice published by the Municipal Council on 03.12.2008 regarding the Khasra No. 573 and no objection to the same by the petitioner has been apparently filed. The impugned order also records that the petitioner could not at the first instance provide for any document which could establish his possession or title. The impugned orders by the learned courts below are well reasoned and are legally sound. 10. Thus, at this stage, this Court does not find any reason or interference in the present writ petition and the same is dismissed.