1 S.B. CIVIL WRIT PETITION NO.3796/2007 Hasta Ram and others. vs. State of Rajasthan and others. Date : 11.1.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.ML Khatri, for the petitioners. Mr.NK Mehta, Dy.GA, for the respondents. - - - - - Heard learned counsel for the parties. The petitioners are aggrieved against the order dated 23.2.2007 passed by the trial court dismissing the petitioners' application under Order 39 Rules 1 and 2 CPC and against the order dated 16.3.2007 passed by appellate court dismissing the petitioners' appeal against the order dated 23.2.2007. Learned counsel for the respondents have raised preliminary objection with respect to the maintainability of the writ petition on the ground that the petitioners have not challenged the appellate order and straightaway has challenged the trial court's order and the trial court's 2 order has merged in the appellate order and that order has attained finality. Learned counsel for the petitioners submitted that the petitioners have already annexed the certified copy of the appellate order and inadvertently failed to mention the relief against the appellate order. The petitioners have now submitted an application for amendment in the writ petition and to include the prayer for setting aside the appellate order. On merits, it is submitted that the respondents have admitted khatedari rights of the petitioners on khasra no.571 and further have submitted before the trial court that they will not construct any road on the said khasra no.571. The respondents are constructing way in khasra no.484 which is recorded as gair mumkin rasta. In view of the above, there was no reason for refusal of injunction against the respondents/defendants by the two courts below. Learned counsel for the respondents on merits submitted that there is no question of interfering in the khatedari rights of the petitioners by the respondents when there is already a way in existence which is in khasra no.489, therefore, 3 two courts below rightly dismissed the petitioners' prayer for grant of injunction against the respondents. I considered the submissions of learned counsel for the parties and perused the facts of the case. It appears that the petitioners have already placed on record the appellate order by which the petitioners' appeal was dismissed by the appellate court. It appears that the petitioners inadvertently failed to incorporate the relief of setting aside of appellate order. In view of the above reason and in peculiar facts of the case, this Court is not inclined to dismiss the writ petition only on the ground of not claiming relief against the appellate order. Since it is admitted case of both the parties that no road is being constructed on khasra no.571, which according to the petitioners is of the petitioners, I do not find any reason to entertain this writ petition in view of the specific stand of the respondents. However, the respondents will make sure that no part of the land of the petitioners be used in 4 view of their own submissions in the return to the injunction application and they should ensure with the help of revenue authorities that the petitioners' land in khasra no.571 is not used for construction of road. The writ petition is disposed of accordingly. (PRAKASH TATIA), J. S.Phophaliya