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2021 DIGILAW 1532 (RAJ)

Sunil Parihar v. Ganpat Singh

2021-08-17

VINIT KUMAR MATHUR

body2021
JUDGMENT 1. Heard learned counsel for the parties. 2. The present appeal has been preferred against the order dated 03.09.2019 passed by Additional District Judge No.5, Jodhpur Metropolitan in Civil Misc. Case No.34/2018(Sunil Parihar & Ors. V/s Ganpat Singh & Ors.) arising out of Original Civil Suit No. 17/2018, whereby the Temporary Injunction Application filed by the appellants/plaintiffs under Order 39 Rule 1 & 2 C.P.C. has been rejected. 3. Learned counsel for the appellants vehemently submits that the learned Court below committed an error while rejecting the application preferred under Order 39 Rule 1 & 2 read with Section 151 C.P.C. He further submits that the appellants and the respondents are close relatives and merely on the basis of the admission of the appellant's father in some other civil case, it cannot be construed that the present appellants are not in the possession of disputed property. He submits that although there was a dispute between the respondent-brothers but to cut short the said dispute, appellant's father gave the statement in that suit which was factually incorrect. He further submits that the statement given by the appellant's father in that suit cannot be used against the appellants in the present case. He submits that even as per the site report prepared by the Police in the criminal case, the possession of the present appellants is shown. He, therefore, submits that the learned trial Court has committed an error while recording the finding that the prima facie case does not exist in favour of the appellants. Learned counsel has relied upon the judgments of the Bombay High Court in the case of Ramabai Shriniwas Nadgir and Ors. V/s The Government of Bombay reported in AIR 1941 Bom 144 and judgment of the Hon'ble Supreme Court in the case of Basant Singh V/s Janki Singh & Ors. reported in AIR 1967 SC 341 . 4. Per contra, learned counsel for the respondents submits that the finding recorded by the trial Court on the "prima facie case" does not suffer from any infirmity as the appellants are not residing in the suit property. He submits that the address of the appellants also shows that they are residing in Kudi Bhagtasni Housing Board. 4. Per contra, learned counsel for the respondents submits that the finding recorded by the trial Court on the "prima facie case" does not suffer from any infirmity as the appellants are not residing in the suit property. He submits that the address of the appellants also shows that they are residing in Kudi Bhagtasni Housing Board. Therefore, the findings recorded by the learned Tribunal are perfectly justified and no error has been committed while rejecting the application preferred by them under Order 39 Rule 1 &2 C.P.C. 5. I have considered the submissions made at the Bar and have gone through the order dated 03.09.2019 as well as the other relevant record of the case. 6. The fact is that father of the appellants, Mohan Singh, stated before the Civil Court in some proceedings that he had sold his share of property to one Santosh Kumar, it was proved by the respondents by placing documentary evidence with respect to the suit property in question, the same cannot be denied and disputed. To establish a prima facie case in favour of the appellants for temporary injunction, the appellants are required to show that they are in a continuous possession of the suit property and since no evidence in support thereof was placed before the trial Court, it can easily be inferred that the appellants are not residing in the suit property. 7. The argument of the learned counsel for the appellants that site plan prepared by the Police during the investigation of criminal case shows the name of appellant's father in one portion of suit property is noted to be rejected for the simple reason that neither it discloses the fact of possession by the appellants at that time nor anything was mentioned about their possession. It is expedient to reproduce the findings recorded by the learned trial Court on the existence of prima-facie case as under:- 8. The judgments relied upon by the learned counsel for the appellants are having no application in the present case as the facts of the present case are totally distinguishable and, therefore, the judgments are of no help to the appellants. 9. The judgments relied upon by the learned counsel for the appellants are having no application in the present case as the facts of the present case are totally distinguishable and, therefore, the judgments are of no help to the appellants. 9. Since, the appellants have failed to bring on record any documentary evidence to show that they are in possession of the property in question, the findings recorded by the trial Court does not suffer from any infirmity and thus the order passed on the application of the appellants under Order 39 Rule 1 & 2 C.P.C. is just and proper and does not call for any interference by this Court and the same is, therefore, dismissed.