1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Chhoga. vs. Jugraj Verma and another. S.B.CIVIL SECOND APPEAL NO.222/2006 UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED 15.12.2004 PASSED BY SHRI KISHAN LAL VERMA, DISTRICT JUDGE, JALORE IN CIVIL APPEAL DECREE NO.16/1999. DATE OF JUDGMENT ::: 19.4.2007 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr.V Purohit, for the appellant. - - - - - BY THE COURT: Heard learned counsel for the appellant. The plaintiff filed suit for mere injunction alleging that his father was in possession of the property measuring 19 x 14 x 2½ x 21 sq.ft. The 2 plaintiff's father applied for grant of patta, upon which patta file no.82/54 was constituted in the office of Naib Tehsildar, Jalore. Since the plaintiff's father died, therefore, the patta was not issued in favour of plaintiff's father. The plaintiff also could not obtain the patta in his favour. Thereafter, the said file is missing. The defendant no.1 obtained a patta of the same land as strip of land on 22.10.1992. According to the plaintiff, said patta was obtained by the defendant no.1 in collusion with the officers of the defendant no.2 i.e. Municipal Board, Jalore and in pursuance of the decision of the Municipal Board, Jalore, a registered deed has been executed in favour of the defendant no.1. The defendant no.1 forcibly started construction over the property in dispute after obtaining permission from Municipal Board, Jalore which was granted on 8.11.1993. The defendant no.1, purchaser of the property from Municipal Board, Jalore, submitted written statement and stated that he is owner of the property as a registered deed has been executed in his favour. Said land was open piece of land and it was not in possession of the plaintiff or his father. The plaintiff's father never initiated any proceedings for obtaining the patta for the land. The defendant no.1 also pleaded that he raised construction over the small 3 piece of land after obtaining permission from Municipal Board. The defendant no.1 also pleaded that since the plaintiff has no title for the property in dispute and has not sought any declaration for his rights and the defendant no.1 has already raised construction over the property in dispute, therefore, the plaintiff's suit was not maintainable because of the fact that he has not sought declaratory relief nor he is in possession of the property, therefore, mere suit for prohibitory injunction was not maintainable. It is also submitted that the plaintiff has not served the notice under Section 271 of the Rajasthan Municipalities Act. Issues were framed by the trial court but issue no.5 about maintainability of suit was decided as preliminary issue and the two courts below held that the plaintiff's suit deserves to be dismissed as not maintainable. Learned counsel for the appellant submitted that the appellant can maintain the suit for mere injunction on the strength of his old possession. Mere grant of patta in favour of the defendant no.1 by the defendant no.2 is not of any relevance. It is also submitted that the Court could have moulded the relief in the changed circumstances and could have granted the relief of possession also after trial of the suit. It is also 4 submitted that the two courts below have not appreciated the facts correctly and, therefore, committed serious error of law in dismissing the plaintiff's suit. I considered the submissions of learned counsel for the appellant. It is not in dispute that the plaintiff is not owner of the property because the plaintiff himself stated in the plaint itself that his father applied for patta, therefore, neither the plaintiff's father nor the plaintiff could have questioned the patta granted to the defendant no.1. Till the deed is granted in favour of the plaintiff or his father, he could not have claimed any relief as the plaintiff and his father claimed title from Municipal Board, Jalore. In that situation, no other plea survives. So far as possession is concerned, admittedly, not only the patta has been granted in favour of the defendant no.1 but he has possession over it and despite objection being raised in the written statement, the plaintiff did not choose to amend the written statement and himself proceeded for trial of the suit without claiming relief of possession. In that situation, the plaintiff could have claimed the relief but did not choose to do so, therefore, the plaintiff could not claim that the court 5 should have granted that relief for which he was made aware of by the defendant no.1 by filing written statement and by filing objection and the court framed issue for that purpose. In view of the above, this Court is of the view that no substantial question of law is involved in this appeal. Consequently, this appeal, having no merit, is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya