1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Bhanwaroo Ram Vs. The Civil Judge (Jr. Div.) Merta and Others. S.B.Civil Writ Petition No. 3994/2008 ......... Date of Order : 03/07/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR BY THE COURT Mr. R.S.Choudhary for the petitioner. By the instant writ petition under Article 227 of the Constitution of India, the petitioner has challenged the order Annex.11 dated 09.5.2008 and Annex.13 dated 30.5.2008. I have heard learned counsel for the petitioner. Carefully gone through the material placed on record. It is contended by learned counsel for the petitioner that a patta was issued in favour of the father of the petitioner way back in the year 1960 and he is in possession of the land in pursuance of the patta issued in favour of his father. He has constructed a boundary wall on his own land which was sought 2 to be demolished by the respondents for the purpose of construction of the road. The petitioner filed a civil suit before the respondent No.1. Along with the suit, the petitioner also filed an application under Order 39 Rule 1 and 2 CPC seeking temporary injunction restraining the respondents to demolish the wall and construct the road thereon. The application seeking temporary injunction was contested by the respondents and by order dated 09.05.2008, the respondent No.1 Civil Judge (Jr. Div.) Merta (for short 'the trial court' hereinafter), dismissed the application seeking temporary injunction under Order 39 Rule 1 and 2 CPC. Against order dated 09.5.2008, the petitioner filed an appeal before learned District Judge, Merta (for short 'the appellate court' hereinafter) being Civil Misc. Appeal No. 10/2008 which too came to be dismissed by order Annex.13 dated 30.05.2008. Hence this petition. It is contended by learned counsel for the petitioner that it was the private respondents No.2 and 3 who encroached upon the land of Khasra No. 144 which is Gair Mumkin Rasta. The Tehsildar, Merta directed the Revenue Inspector and Patwari of the area to inspect and measure the land in dispute vide Annex.2. The site was inspected and site map was prepared by the revenue authorities i.e. Revenue Inspector, Merta and the Patwari Incharge Sogawas. Learned counsel for the petitioner 3 has relied on a report Annex.8 which was called by the trial court by appointing a Commissioner and in that report it has been shown that a wall constructed is old one. From the perusal of the site map and site inspection Note Annex.2, it appears that Khasra No.144 of village Sogawas is recorded in the revenue record as Gair Mumkin Rasta. The petitioner has his land adjacent to that of the Gair Mumkin Rasta. From the report, it appears that the petitioner has encroached upon Gair Mumkin Rasta at Point “K” and Point “I”. At point “K” 3 Gatta (revenue measurement) and at point “I” 5 Gatta has been encroached on the way by constructing wall. Similarly the private respondents have also encroached upon 2 Gatta of the land of Gair Mumkin Rasta by constructing a bush from Point “D” to “H”. Both the courts below, having considered the material placed on record more particularly learned District Judge while dismissing the appeal and affirming the order of the trial court, in para 7 of the order Annex.13 noticed that the petitioner has trespassed the land of Gair Mumkin Rasta which is evident prima-facie from the report submitted by the revenue authorities vide Annex.2. Though the point of patta was also argued before both the courts below and the respondents came with the contention that the patta is forged one. The original patta has not been filed before the trial court, however, photo 4 copy of the same has been placed on record before the trial court. Be that as it may, since the question as to whether the patta is forged or not, has to be gone into in the trial of the main suit as these are the questions of facts and have to be decided when the parties adduces the evidence. At any rate, the report submitted by the Revenue Inspector Annex.2 is prima-facie evidence of revenue record that the petitioner has trespassed on the Gair Mumkin Rasta bearing Khasra No.144. It is not in dispute that Khasra No.144 has been recorded in the record of Revenue as Gair Mumkin Rasta and it has not been disputed by either of the parties before the courts below. Learned counsel for the petitioner submits that unless the exact place is measured and the parties are allowed to lead evidence to establish as to whether there is trespass or not, the subject matter of the land may be protected by a temporary injunction. Learned counsel for the petitioner has relied on a decision of Hon'ble Supreme Court in Wander Ltd. and Another Vs. Antox India P. Ltd. 1990 (supp) SCC, 727. In para 9 of the Report, Hon'ble Supreme Court observed as under:- “Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial 5 on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both tem [porary and discritionary. The object of the interlocutory injunction, it is stated “... is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience' lies.” The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case.” In the instant case, both the courts below concurrently found prima-facie evidence that the petitioner prima-facie committed a trespass on the Gair Mumkin Rasta and constructed a wall thereon. The construction of the road has been sanctioned by the respondent State under the Scheme PMR and road has to be constructed on the Gair Mumkin Rasta recorded in the revenue records. Both the courts below did not find prima-facie case in favour of the petitioner as also point of balance of convenience and irreparable injury have been decided 6 concurrently against the petitioner by the courts below. Even if, in the trial, the petitioner succeeds to establish that he is not trespasser, yet any damage caused to him can be compensated by the respondents in terms of money may be by way of compensation but at any rate, the petitioner has failed to establish all the essential three points i.e. prima-facie case, balance of convenience and irreparable injury. In my view, in the supervisory jurisdiction under Article 227 of the Constitution of India, no ground for interference in the concurrent finding of facts recorded by the courts below is made out. The decision relied on by learned counsel for the petitioner turns on its own facts and is of no help to the petitioner in the facts and circumstances of the present case. More so, the order impugned Annex.13 dated 30.5.2008 has been passed by the District Judge, Merta and the authority passing the order impugned Annex.13 has not been impleaded as party respondent. In Udit Narain Singh Malpaharia Vs. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786, the Apex Court held that in a writ of certiorari not only the tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. 7 In the instant case, the District Judge, Merta whose order is sought to be reviewed is a necessary party and the writ petition has been filed without impleading the District Judge, Merta as party. For the reasons stated above, I do not find any merit in the writ petition and it is dismissed accordingly. No order as to costs. (H.R.PANWAR), J. rp 8 S.B.Civil Misc. Stay Petition No.7235/2008 IN S.B.Civil Writ Petition No. 3994/08 ......... Date of Order : 03/07/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. R.S.Choudhary for the petitioner. Since the writ petition itself has been dismissed, the stay petition also stands dismissed. (H.R.PANWAR), J. rp