SBC2ND APPEAL NO.240/2008– BHAGWATI LAL V/S GHANSHYAM AND ORS. . : ORDER DATED 8.9.2008 1/4 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.240/2008 Bhagwati Lal versus Ghan Shyam and ors PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.R.C.Gaur, for the appellant. DATE OF ORDER : 8th September, 2008. O R D E R 1. Heard the learned counsels for the appellant. 2. This second appeal is directed against the order dtd.12.8.2008 of the learned Additional Dist. Judge No.3, Udaipur whereby the learned Additional Dist. Judge in appeal against the decree of injunction granted by the learned Civil Judge (J.D.), Udaipur City (South) on 20.42007 allowing the appeal of the defendant held that since injunction was claimed by the plaintiff on the basis of patta SBC2ND APPEAL NO.240/2008– BHAGWATI LAL V/S GHANSHYAM AND ORS. . : ORDER DATED 8.9.2008 2/4 issued in his favour in the year 1983, whereas the land in question was included within the Municipal limits in the year 1970 in ward No.3. Therefore, the learned appellate Court setting aside the decree and allowing the amendment under Order 6 Rule 17 C.P.C. remanded the case back for denovo trial to the learned trial Court. Being aggrieved of the said remand order, the present second appeal has been preferred by the plaintiff. 3. The learned counsel for the appellant submitted that the learned first appellate Court could not remand the case back to the trial Court without traversing the entire evidence which was considered by the learned trial Court while decreeing the suit for injunction against the defendant. He submitted that even if it is assumed for the argument sake that the patta was not properly issued by the Gram Panchayat since the land was included within Municipal limits in the year 1970, even then injunction suit could be decreed against the private persons, namely, the defendant and therefore, the appellate Court could not allow such amendment and remand the case back to the learned trial Court for denovo trial. SBC2ND APPEAL NO.240/2008– BHAGWATI LAL V/S GHANSHYAM AND ORS. . : ORDER DATED 8.9.2008 3/4 4. Having heard the learned counsel, this Court is of the opinion that no substantial question of law arises in the present case requiring interference by this Court in the impugned remand order. The learned appellate Court clearly found that since the land in question was included within the municipal limits in the year 1970, thus, prima facie patta issued in favour of the plaintiff in the year 1983 by the Gram Panchayat was without authority of law and unless the very foundation of possession of land in question of the plaintiff was found to be illegal, no injunction could be granted and therefore, the learned appellate Court allowed the amendment and remanded the case back to the learned trial Court for denovo trial after incorporating the said requisite amendment in the written statement filed by the defendant. This Court is of the opinion that if prima faice it was shown by the defendant even though before the first appellate Court that the Gram Panchayat had not right to issue patta , injunction granted in favour of the plaintiff was without foundation. The plaintiff could not be permitted to hold over possession of the land in question on the basis of patta issued by the Gram Panchayat whereas prima facie the Gram Panchayat had no right to issue such patta. Therefore, requiring the trial a fresh on fresh issue to be framed in the light of said defence of the defendant cannot be said to be wrong in SBC2ND APPEAL NO.240/2008– BHAGWATI LAL V/S GHANSHYAM AND ORS. . : ORDER DATED 8.9.2008 4/4 any manner. This Court therefore, finds no substantial question of law to be arising in the present appeal. The appeal is devoid of merit and the same is accordingly dismissed. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.19 Ss/-