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2022 DIGILAW 1007 (RAJ)

Mangilal Regar v. Mahaveer Singh

2022-03-29

RAMESHWAR VYAS

body2022
JUDGMENT 1. The present civil second appeal has been preferred under Section 100 of the Code of Civil Procedure, 1908 by the appellant -plaintiff against impugned Order dated 27.10.2020 passed by the Additional District Judge, Gulabpura, District Bhilwara in Civil Appeal No. 07/2020 titled as 'Mangilal Vs. Mahaveer Singh' vide which the first appeal preferred by the appellant against the Order dated 21.08.2020 passed by the Civil Judge, Asind, District Bhilwara in Civil Misc. Case No. 25/2020 titled as 'Mangilal Vs. Mahaveer Singh' dismissing the application under Order XXXIX, Rule 1 & 2 read with Section 151 of C.P.C. filed by the appellant- plaintiff, was dismissed. 2. Heard learned counsel for the parties on admission and perused the record of the courts below. 3. Learned counsel for the appellant has submitted that the orders passed by the courts below are contrary to the material available on record. He has further submitted that from the documentary evidence available on record, it was clear that the defendant (respondent herein) was adamant to encroach upon the agricultural land belonging to the plaintiff by raising construction of balcony over it, for which he was having no right. 4. On the other hand, learned counsel for the respondent- defendant has submitted that the subject land was stated to be agricultural land, therefore, the civil court did not have jurisdiction to hear the suit. The defendant purchased plots in question from the plaintiff, at that time, public way was mentioned in the northern side of the said plots. 5. After perusal of the record, it reveals that the appellant- plaintiff has filed the suit for injunction simpliciter on the ground that the defendant was adamant to raise construction of balcony on the agricultural land belonging to the plaintiff. During pendency of the suit, the courts below have rejected the application under Order XXXIX, Rule 1 & 2 of C.P.C. filed by the plaintiff on the ground that dispute between the parties could be decided after adducing evidence. A perusal of the orders impugned shows that the courts below after appreciating the entire material as also evidence on record have passed the detailed orders observing that the defendant was raising construction on the plots purchased by him and in case, he was restrained from raising construction by temporary injunction, then he would suffer irreparable loss. A perusal of the orders impugned shows that the courts below after appreciating the entire material as also evidence on record have passed the detailed orders observing that the defendant was raising construction on the plots purchased by him and in case, he was restrained from raising construction by temporary injunction, then he would suffer irreparable loss. The plaintiff is having opportunity of raising all his grounds at the time of final hearing of the suit before the trial court. 6. In view of the above position, this Court is satisfied that no substantial question of law is involved in the present second appeal to be decided by this Court. 7. Accordingly, the present second appeal is dismissed at admission stage.