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2019 DIGILAW 262 (RAJ)

Abdul Sattar v. Gulam Rasul

2019-01-21

ASHOK KUMAR GAUR

body2019
JUDGMENT 1. The instant writ petition has been filed by the petitioner- plaintiff challenging the order dated 12.09.2017 passed by the Civil Judge, Deedwana, District-Nagaur (hereinafter referred to as the Trial Court) dismissing the application of temporary injunction filed by the petitioner under Order 39 Rule 1 & 2 read with Section 151 CPC. 2. The petitioner-plaintiff is also aggrieved by order dated 18.12.2018 passed by the Additional District Judge, Deedwana, District Nagaur (hereinafter referred to as the Appellate Court) dismissing the appeal of the petitioner filed against the order dated 12.09.2017. 3. The learned counsel Mr. Narendra Thanavi appearing for the petitioner-plaintiff submitted that both the orders are not sustainable in the eyes of law and this Court is required to interfere with the orders passed by the Courts below. 4. The learned counsel for the petitioner submitted that once the Trial had found the prima facie case in favour of the petitioner, while making observation in the order dated 12.09.2017, the prayer of interim injunction restraining the respondents- defendants from raising construction ought to have been granted by the learned Trial Court. 5. The learned counsel further submitted that the document which was sought to be relied upon by the respondents- defendants was in respect of only a mutation entry and such document did not confer any title in favour of the respondents. 6. The learned counsel has further submitted that the Court below, while passing the order dated 12.09.2017 has been swayed only in respect of a fact that permission of construction was granted in favour of the respondents-defendants. 7. The learned counsel submitted that in a suit for injunction, if appropriate relief by way of temporary injunction is not granted, the entire suit may eventually be a fruitless remedy and the rights of the parties, cannot be put in jeopardy in such situation. 8. The learned counsel further argued that the respondents- defendants are determined to make construction in the suit property and as such, looking to the gravity, the Trial Court ought to have at least passed the order of status-quo or restraining the respondents-defendants from making any construction. 9. Per contra, the learned counsel Mr. Vishal Sharma appearing for the respondents-defendants as a caveator submitted that both the order passed by the Courts below are not required to be interfered by this Court. 9. Per contra, the learned counsel Mr. Vishal Sharma appearing for the respondents-defendants as a caveator submitted that both the order passed by the Courts below are not required to be interfered by this Court. The learned counsel submitted that the concurrent findings have been given in respect of grant of injunction, cannot be entertained by this Court, while exercising the writ jurisdiction. 10. The learned counsel Mr. Sharma further submitted that the Court below has not only considered the one document, as alleged by the learned counsel for the petitioner, but has also taken into account the permission of the construction granted by the Municipal Board, Deedwana vide order dated 16.03.2017. 11. The learned counsel submitted that the document which is sought to be relied upon by the petitioner to derive the title is in respect of a patta, said to be issued in June, 1954. The learned counsel submitted that two applicants - Sarajuddin and Roshandeen had applied for grant of patta and eventually, the patta was issued in favour of Sarajuddin and not in favour of Roshandeen, the predecessor-in-title of the petitioner. 12. The learned counsel for the respondents-defendants submitted that the petitioner has filed the suit for injunction only and without seeking a declaration or partition, even no relief can be granted in the main suit. 13. I have heard learned counsel for the parties and perused the material available on record. 14. This Court finds that the findings/observations made by the learned Trial Court are only for the purpose of deciding the temporary injunction application and such observations/findings cannot be a basis to decide the main suit. 15. This Court finds that if the temporary injunction application has been dismissed by the learned Trial Court and the same view has been affirmed by the learned Appellate Court, no interference is required to be made by this Court by exercising the supervisory jurisdiction under Articles 226 & 227 of the Constitution of India. 16. This Court finds substance in the submission of the learned counsel for the petitioner that if no direction is given to decide the suit expeditiously and the respondents-defendants are permitted to raise construction, the entire suit itself may become infructuous. 17. The learned counsel for the respondents-defendants Mr. Sharma submitted that if necessary directions are given to decide the suit expeditiously, this Court may pass appropriate order. 18. 17. The learned counsel for the respondents-defendants Mr. Sharma submitted that if necessary directions are given to decide the suit expeditiously, this Court may pass appropriate order. 18. This Court disposes of the present writ petition, without interfering in the orders passed by the Trial Court and the Appellate Court as under:- (i) The Trial Court is directed to decide the suit expeditiously, but in no case later than six months from the date of receipt a copy of this order; (ii) The construction, which is sought to be raised by the respondents-defendants, will be done at their own peril and no equity would be claimed by the respondents- defendants; and (iii) Both the parties are directed not to create any third party right and further restrained to alienate the property in dispute till disposal of the suit. 19. With the observations foregoing, the present writ petition disposed of.