[1] DBSAW 625/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT D.B. CIVIL SPECIAL APPEAL (WRIT) NO. 625/2009 IN S.B. CIVIL WRIT PETITION NO. 12163/2008 SHRI BHAGCHAND KUMAWAT & ANR. Vs. RAM CHANDRA SAINI & ANR. Date: 19.08.2009 HON'BLE MR. JUSTICE R.C. GANDHI HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr. Raghunandan Sharma, Advocate for the appellants. **** (ORAL): This appeal has been preferred against the order dated 15.05.2009 passed by the learned Single Judge, whereby S.B. Civil Writ Petition No. 12163/2008, filed by respondent, Ram Chandra Saini, has been allowed setting aside the order dated 21.08.2008 passed by the Appellate Court. The dispute involved is with regard to the land bearing Survey Nos. 106, 107, 108 and 109 of village Sodala, measuring 4 Bigha, 18 Biswa, and has been purchased from Khatedar Ram Chandra Saini by the Ram Nagar Grih Nirman Sahakari Samiti and that Samiti has issued allotment of the plot to the the various persons including the appellants and they, as allottees, are in possession of the land. Since their possession was under threat, they filed a suit and in interim the trial Court directed the parties to maintain status quo on spot. Against the [2] DBSAW 625/2009 status quo order, the plaintiffs-appellants preferred an appeal and the Appellate Court restrained the respondent-Khatedar not to interfere in the possession and proprietary right of the plaintiffs. The order of the Appellate Court was challenged by respondent Ram Chandra Saini by way of writ petition No. 12163/2008 and the learned Single Judge, while setting aside the order of the Appellate Court, observed as under:- “In this case learned trial court has held that by the evidence available on the record, the physical condition of the property in dispute is not clear but learned appellate court without referring to any evidence for arriving at a conclusion that the disputed plots are in possession of the plaintiffs has granted stay in favour of the plaintiffs and has restrained the defendant-petitioner from interfering in the possession and proprietary right of the plaintiffs. This is entirely perverse and illegal. The impugned order dated 21.08.2008 passed by the learned Appellate Court is therefore not sustainable.” The appellants have filed this appeal on the ground that the order of the learned Single Judge is not sustainable as the appellants are in possession of the property, as allottees. We have heard learned counsel for the parties and perused the record. The appellants, though may have be in possession of the plot pursuant to the allotment made by the Society, yet the Society cannot make any allotment unless the Khatedar has sold the land or parted with the possession of the land in favour of [3] DBSAW 625/2009 the Society, on consideration. It has also not been shown to us from any evidence that the land use of the agriculture land has been converted by the appropriate authority. Unless it is shown, the agriculture land cannot be used for residential purposes. The appellants could not make out by any evidence that the land in dispute has been allotted to them after conversion of land use. It is seen from the order of the trial Court that the land is still shown in the Revenue record in the name of the Khatedar Ram Chandra Saini, and he is in possession of the land. In these circumstances, the Khatedar cannot be restrained and the outsider or a trespasser, who is not having any legal right to possess the land, can be permitted to use the land, which is in the recorded possession of the Khatedar. In these circumstance, we do not find any illegality committed by the learned Single Judge which need any interference. The trial Court has passed the order of maintaining status quo with regard to disputed property, which protects the rights of both the parties. Therefore, the order of the learned Single Judge is maintained and the order of the trial Court is restored. The appeal is, accordingly, dismissed. (K.S. CHAUDHARI),J. (R.C. GANDHI), J. /KKC/