Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 2149 (RAJ)

Jarnail Singh v. Shaali Ram

2021-11-16

DEVENDRA KACHHAWAHA

body2021
ORDER 1. Heard learned counsel for the appellant/plaintiff. 2. Issue notice to the respondents. 3. Since, the respondent No. I/defendant is represented through the learned counsel Mr. Muktesh Maheshwari by filing caveat on his behalf, let the notices be issued to the other respondents. Rule is made returnable within a period of four weeks. 4. Heard learned Senior Counsel Mr. R.K. Thanvi appearing on behalf of the appellant/plaintiff as well as learned counsel Mr. Muktesh Maheshwari appearing on behalf of the respondent No.l/ defendant in caveat on the prayer for grant of interim relief. 5. Learned counsel for the appellant/plaintiff stated that with the suit for specific performance of the contract, an application under Order 39 Rule 1 & 2 read with Section 151 of the CPC seeking injunction has been filed by the appellant/plaintiff, inter alia, with the averments that an agreement to sale has been executed by the respondent No.1/defendant in favour of the appellant/plaintiff and at that time, possession of the land in question has also been handed over to the appellant/plaintiff and since then, the appellant/ plaintiff is in possession over the land in dispute. It is also stated that the learned Trial Court has wrongly rejected the application aforesaid seeking injunction vide its impugned order dated 23.07.2021. He further stated that although it was admitted by the learned Trial Court that whether the agreement to sale is false or fabricated, this point can be decided in the suit itself and in the application for interim injunction, it cannot be decided. It was also admitted by the learned Trial Court that whether the suit land was a Government land (jdckjkt) or not and this point cannot be decided at this stage but despite of that, the point of prima facie case has not been found in favour of the appellant/plaintiff and, therefore, the impugned order has been passed against the spirit of law laid down by Hon'ble the Supreme Court and this Court. Learned counsel also stated that the learned Trial Court has decided the issue of prima facie case against the appellant/plaintiff on the ground that the plaintiff is an encroachee upon the Government land; that even an encroachee cannot be dispossessed without adopting due process of law. Learned counsel also stated that the learned Trial Court has decided the issue of prima facie case against the appellant/plaintiff on the ground that the plaintiff is an encroachee upon the Government land; that even an encroachee cannot be dispossessed without adopting due process of law. In support of his arguments, learned counsel for the appellant/plaintiff has referred to and relied upon the following judgments:- (1) In the case of Ram Nath Sao @ Ram Nath Sahu since deceased through LR's & Ors. Vs. Goberdhan Sao since deceased through LR's & Ors., reported in 2017 DNJ (SC) 262; (2) In the case of Sirajuddin @ Vajir Miyan Vs. Abdul Gaffar & Ors., reported in 2015 (1) WLC (Raj.) 448; (3) In the case of Ranjodh Singh Vs. Chanduram & Ors., reported in R.R.T. 2001 (2) 818; and (4) In the case of Prataprai N. Kothari Vs. John Braganza, reported in RLW 1999 (2) SC 292. 6. On the other hand, learned counsel Mr. Muktesh Maheshwari appearing on behalf of the respondent No.1/defendant in caveat has vehemently and fervently opposed the arguments advanced by the learned Senior Counsel on behalf of the appellant/plaintiff and stated that the disputed land was temporarily allotted to the respondent No.1/defendant under the Rajasthan Colonisation (Allotment of Government land to Pong Dam Oustees in the Rajasthan Canal Colony), Rules, 1972 (in short, "the Rules of 1972" hereinafter) and as per Rules 5 & 6 of the Rules of 1972, the land in dispute cannot be transferred. He further stated that the allotment as made in favour of the respondent No.1/ defendant has been cancelled by the State Government. It is also stated that Section 41(e) of the Specific Relief Act, 1963 says that:- "41. Injunction when refused.- An injunction cannot be granted - ? (e) to prevent the breach of a contract the performance of which would not be specifically enforced; ? " 7. Learned counsel Mr. Maheshwari further stated that as per the law laid down by this Court in the cases of Gurdeep Singh Vs. Special Judge, Pong Dam Oustees Matters, Sriganganagar, reported in RLW 1998 (3) Rajasthan 1526 and Pahalwan Singh Raisikh Vs. " 7. Learned counsel Mr. Maheshwari further stated that as per the law laid down by this Court in the cases of Gurdeep Singh Vs. Special Judge, Pong Dam Oustees Matters, Sriganganagar, reported in RLW 1998 (3) Rajasthan 1526 and Pahalwan Singh Raisikh Vs. LR's of Vishambhar Das Nai & Ors., reported in 2017 (2) DNJ (Raj.) 954, the application filed by the appellant/plaintiff under Order 39 Rule 1 & 2 read with Section 151 CPC has rightly been rejected by the learned Trial Court because there is no legal right accrued in favour of the appellant/plaintiff on the basis of so called agreement to sale; that as per the Revenue record, the land in question is a Government land (jdckjkt) and the concerned authorities of the State Government has initiated proceedings for dispossession of the appellant/plaintiff and in this matter, the respondent No.1/defendant (caveator) has nothing to do. 8. Having regard to the arguments advanced by both the sides and after careful reading of the judgments cited by both the sides, this Court is of the opinion that the learned Trial Court do not committed any error in rejecting the application of the appellant/plaintiff Jarnail Singh filed under Order 39 Rule 1 & 2 read with Section 151 CPC because it is an admitted position that the agreement to sale was executed by the respondent No.1/defendant Shaali Ram and Shaali Ram was not the owner of the property; the land was temporarily allotted to him under the Rules of 1972 and as per Rule 5 and Rule 6 (iii) and (iv) of the Rules of 1972, "the allottee shall not have any alienable or transferable rights in the land and shall not transfer or alienate the land to any other person in any manner, i.e., by sale, mortgage, gift, transfer, lease or otherwise" and as per Section 41 (e) of the Specific Relief Act, an injunction cannot be granted in relation to breach of such type of contract. 9. Principally, I am agree with the law laid down by the coordinate Bench of this Court in the cases referred to and relied upon by the learned counsel for the appellant/plaintiff but since the facts and circumstances of the present case are different, no relief can be granted to the appellant/plaintiff on the basis of the above citations in the present case. 10. 10. It is also pertinent to mention here that in the case of Ram Nath Sao @ Ram Nath Sahu (supra), it was decided that the relief of injunction can be granted on settled possession without title and question of title shall left open till the decision of the suit. 11. Similarly, in the case of Sirajuddin @ Vajir Miyan (supra), both the sides claimed their title over the disputed property and it was held that the controversy shall be decided in the main suit after evidence of both the sides and looking to the facts and circumstances of the case, it was directed that both the parties shall maintain the status-quo till the disposal of the suit; whereas, in the present case, the respondent No.I/defendant clearly stated that the land was allotted to him temporarily and as per Rule 6(iv) of the Rules of 1972, the respondent No.1/defendant shall have no right to transfer the land in question. 12. In the case of Ranjodh Singh (supra), the respondent No.3 had failed to establish that he is a member of the Scheduled Casteand the plaintiff was in possession over the land in dispute and in the facts and circumstances of the case, it cannot be said that the plaintiff is a trespasser; whereas, in the present case, as per arguments advanced by the learned counsel for the respondent No.I/defendant (caveator) and provision of law as well as judgments cited by the learned counsel for the respondent No.I/defendant (caveator), it is prima facie established that the land in question was a Government land (wirm) and the proceedings for dispossessing the appellant/plaintiff had already been initiated by the Tehsildar, Anoopgarh and notice to show cause as issued against the appellant/plaintiff, a copy of the same has also been placed for the Court's perusal, therefore, in that view of the matter, I am of the considered view that for eviction of the appellant/plaintiff, procedure of due process of law has not been adopted by the competent authority. However, in the interest of justice, the appellant/plaintiff can raise all the issued before the competent authority. 13. In the case of Prataprai N. Kothari (supra), it was held that a person having long continues possession can protect the same by seeking injunction against any person other than the true owner; even the owner of property can get back his possession only by due-process of law. 13. In the case of Prataprai N. Kothari (supra), it was held that a person having long continues possession can protect the same by seeking injunction against any person other than the true owner; even the owner of property can get back his possession only by due-process of law. In the present case, the appellant/plaintiff has prayed for granting of injunction against the true owner of the land in question, i.e., the respondents No. 2, 3 &4. 14. Apart from the above, it was held by the co-ordinate Bench of this Court in the case of Pahalwan Singh Raisikh (supra) as relied upon by the learned counsel for the respondent No.1/defendant (caveator) that allotment of land to the Pong Dam Oustees was barred by law and in the case of Gurdeep Singh(supra), it was held by the co-ordinate Bench of this Court that the land allotted under the Rules of 1972 cannot be transferred by way of agreement to sale because these are against the conditions of allotment and the agreement to sale was liable to be cancelled. 15. It is also pertinent to mention here that the full bench of Delhi High Court in the case of Chandu Lal Vs. Municipal Corporation of Delhi reported in AIR 1978 Delhi 174, vide Head Note "F", it was held that before invoking the jurisdiction of the Court to seek temporary injunction, the petitioners are bound to show that they have a legal right and that there was an invasion of that right. In the present case, it cannot be said that any of the right of the appellant/plaintiff has been invaded. 16. In view of the discussion foregoing, the appellant/plaintiff have no prima facie case in his favour for grant of interim relief till the disposal of the present appeal. The stay application (No. 1157/2021) is dismissed accordingly.