(1) CW-4645/09-Esha Ram Vs. Shri Dev Kishan & Ors., (2)cw-4134/09-Nema Ram & Ors. Vs. Shri Dev Kishan & Ors. & (3) CW-3103/09-Nema Ram Vs. Shri Dev Kishan & Ors. Judgment dt.13.7.09 1/5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT 1. S.B. CIVIL WRIT PETITION NO.4645/2009 Esha Ram Vs. Shri Dev Kishan & Ors. 2. S.B. CIVIL WRIT PETITION NO.4134/2009 Nema Ram & Ors. Vs. Shri Dev Kishan & Ors. 3. S.B. CIVIL WRIT PETITION NO.3103/2009 Nema Ram Vs. Shri Dev Kishan & Ors. Date of order : 13th July, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. C.S. Kotwani for the petitioners. Mr. C.R. Jakhar for the respondents. ------- BY THE COURT:- 1. Heard learned counsels. 2. These three writ petitions are involving common point. The facts of the case of CW No.4645/2009 – Esha Ram Vs. Dev Kishan & Ors. are taken into consideration. In the present writ (1) CW-4645/09-Esha Ram Vs. Shri Dev Kishan & Ors., (2)cw-4134/09-Nema Ram & Ors. Vs. Shri Dev Kishan & Ors. & (3) CW-3103/09-Nema Ram Vs. Shri Dev Kishan & Ors. Judgment dt.13.7.09 2/5 petition, the courts below have concurrently rejected the application of the plaintiff for grant of temporary injunction against the defendants. The case set up by the plaintiff-petitioner is that he was issued a patta by the Tehsildar Shergarh on 9.7.1999 in respect of khasra No.515 out of which 600 sq. meters was converted for residential purposes and he is in possession of the said land in question for a period of over 20 years. The suit came to be filed by the present plaintiffs as the defendants appears to have obtained a mining lease with respect to this plot No.186 which falls in the same land and, therefore, the plaintiffs filed a suit for permanent injunction against the defendants seeking to restrain them from carrying out any mining operation in the said land. The courts below have found that the patta issued in favour of the plaintiff was cancelled by the Additional Collector on 27.2.2007 and even their first appeal against that was dismissed by the Revenue Appellate Authority on 9.9.2008. The second appeal against that order is pending before the Board of Revenue at the instance of the present plaintiff-petitioner and the stay order has been granted by the Board of Revenue, however, no such copy of stay order has been filed by the petitioner in the present case. (1) CW-4645/09-Esha Ram Vs. Shri Dev Kishan & Ors., (2)cw-4134/09-Nema Ram & Ors. Vs. Shri Dev Kishan & Ors. & (3) CW-3103/09-Nema Ram Vs. Shri Dev Kishan & Ors. Judgment dt.13.7.09 3/5 3. Learned counsel for the petitioner Mr. C.S. Kotwani, therefore, urged that the courts below have failed to appreciate that till the dispute is decided by the Board of Revenue, the status quo with regard to the land in question ought to have been maintained and the courts below have erred in refusing to grant temporary injunction in favour of the plaintiff. 4. On the side opposite, Mr. C.R. Jakhar submits that the patta in favour of the plaintiff was canelled by the two revenue authorities and merely because the dispute is pending before the learned Board of Revenue, it does not mean that in civil suit filed by the plaintiff, the courts below were bound to grant the temporary injunction. He submits that the plaintiff has no prima facie case in his favour and on the other hand mining operations of the defendants are not being carried out despite the mining lease in their favour having been restored by the competent authority in the year 2005 and, therefore, the courts below have rightly rejected the prayer for grant of interim injunction in favour of plaintiff. He prayed for dismissal of writ petition. (1) CW-4645/09-Esha Ram Vs. Shri Dev Kishan & Ors., (2)cw-4134/09-Nema Ram & Ors. Vs. Shri Dev Kishan & Ors. & (3) CW-3103/09-Nema Ram Vs. Shri Dev Kishan & Ors. Judgment dt.13.7.09 4/5 5. The learned counsel for the petitioner relied upon the following judgments in support of his contentions:- (i) Rania Vs. Jagdish Chandra – AIR 2003 RAJ 72. (ii) Mohd. Sharif Vs. Sikar & Anr. - AIR 2004 Raj 58 (iii) Vallabh Darshan Hotel Pvt. Ltd. & Anr. Vs. State of Raj & Ors. - 2007 (2) DNJ (Raj.)940 (iv) Zaheer Ahmed Vs. The Municipal Corporation, Jaipour – RLW 1998(2) Raj. 741. 6. I have heard learned counsels and given my consideration to the facts of the present case. 7. Admittedly the patta in favour of the present plaintiff as on today stands cancelled, though his appeal or revision may be pending for consideration before the Board of Revenue. While deciding the temporary injunction matter, the courts below have found that the mining lease in favour of the defendants stands as of now whereas the patta in favour of the plaintiff is stand cancelled though his lis may be pending before the competent forum for adjudication. In these facts and circumstances of the case, if the (1) CW-4645/09-Esha Ram Vs. Shri Dev Kishan & Ors., (2)cw-4134/09-Nema Ram & Ors. Vs. Shri Dev Kishan & Ors. & (3) CW-3103/09-Nema Ram Vs. Shri Dev Kishan & Ors. Judgment dt.13.7.09 5/5 learned trial court has refused to grant the temporary injunction in favour of the plaintiff, they cannot be said to have committed any error of jurisdiction or material irregularity in exercise of such discretion against the plaintiff-petitioner. Even otherwise the patta in question appears to have been granted in favour of the plaintiff on the basis of his possession over the said land claimed to be for last 20 years. As on the date of filing of the suit and at the time of consideration of the application for grant of temporary injunction under Order 31 Rule 1 and 2 C.P.C., the learned courts below were faced on situation of the patta in favour of the plaintiff did not hold the field whereas the defendant had a valid mining lease in their favour. Therefore, refusal to grant T.I. in favour of the plaintiff cannot be faulted. 8 These writ petition are found to be devoid of merit. The same are dismissed. No orders as to costs. [ DR. VINEET KOTHARI ], J. item No.8 to 10 babulal/