1 S.B.Civil Writ Petition No.5055/2007 Hari Singh @ Harish vs Addl. District Judge No.1, Jodhpur & Ors. DATE OF ORDER : -18.1.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.T. Gupta, for the petitioner. Mr.Vinay Jain, for the respondents nos. 2 to 5. <><><> Heard learned counsel for the parties. The petitioner is aggrieved against the two orders passed in proceedings under Order 39 Rule 1 and 2 CPC in two separate suits, one filed by the petitioner and another filed by the non-petitioners nos.3 to 5. In the petitioner's suit injunction has been dismissed by the trial court whereas in the non- petitioners' suit injunction was allowed. The appeals were preferred before the first appellate court and the first appellate court by separate orders both dated 31st May, 2007 dismissed both the appeals of the petitioner, hence, this writ petition has been preferred to challenge both the orders dated 31st May, 2007. According to learned counsel for the petitioner, the petitioner purchased the plot in dispute vide sale deed dated 13th March, 2006, which was 2 registered on 14th March, 2006. The sale deed was executed by the registered power of attorney holder of the vendor. The petitioner, thereafter, applied for conversion of land by moving appropriate application before the UIT, Jodhpur. The proceedings were taken by the UIT, Jodhpur for conversion of land and for that purpose, even public notice was issued. No objection was submitted by anybody and, thereafter, the UIT, Jodhpur accepted the surrender of land from petitioner for the purpose of granting Patta in favour of the petitioner of converted land. The petitioner's original sale deed was lost by the petitioner on 21st August, 2006 and,therefore, the petitioner submitted report before the Police Station, Udaimandir, Jodhpur, copy of which has been placed on record as Annex.P/13. The petitioner apprehends dispossession from the plot in dispute, filed suit for injunction against the non-petitioners on 13th March, 2007 wherein Commissioner was appointed by the court on the request of the petitioner and the Commissioner inspected the site on 17th March, 2007 and submitted report evidencing petitioner's possession. It is submitted that the plot in question had stone slab boundary. The petitioner's family members were found by the Commissioner on spot. The petitioner's certain goods were also lying on the plot in question. The 3 petitioner thereby proved that he is owner of the property in dispute and is in possession of the property. The petitioner's application for appointment of Commissioner was resisted by the non- petitioners and that clearly indicates that non- petitioners were not in possession of the property in dispute. According to learned counsel for the petitioner, the courts below committed error of law in observing that title follows the possession in the case of immovable property when immovable property is open piece of land. According to learned counsel for the petitioner in the present case, the property was enclosed by the stone slab, the petitioner's family members were found in possession of the property then the principle of title follows the possession or possession follows the title had no relevancy in the present facts of the case. It is also submitted that non-petitioners have set up sale deed in their favour, which is alleged to have been executed on 20th March, 2006 through un-registered power of attorney holder of the petitioner. The agreement in favour of the non-petitioners is also not registered agreement. It is also submitted that the sale consideration in the sale deed dated 13th March, 2006 is Rs.80,000/- only whereas in the sale deed dated 20th March, 2006, the sale consideration has been shown as more than Rs.2 lacs. Learned counsel for 4 the petitioner submitted that now the petitioner has already submitted an application for amendment of the plaint so as to include the relief of cancellation of sale deed dated 11th July, 2006 alleged to be in favour of the non-petitioners. Learned counsel for the petitioner also submitted that in all the documents cross witnesses are there. In view of the above facts, the two courts below committed serious error of law in not granting order to maintain the status-quo and committed error of law by rejecting the petitioner's application and allowing the non- petitioners' application for grant of injunction. Learned counsel for the respondents vehemently submitted that the petitioner purchased the plot in question by registered sale deed is not in dispute. The non-petitioners purchased the plot in dispute and in consequence and in furtherance of that agreement, paid the entire sale consideration and obtained the registered sale deed in their favour. The original sale deed is also lying in the possession of the non- petitioners and the petitioner on 24.8.2006 submitted report to the Police Station alleging that his sale deed has been lost whereas much before that the original document was handed over to the non- petitioners by the petitioner. It is also submitted that in case the application for amendment of the plaint will be allowed by the trail court then the 5 trial court will not have jurisdiction to hear the suit of the plaintiff-petitioner on the ground of lack of pecuniary jurisdiction then in that situation, the suit will be properly instituted from the date when it is presented in proper court. It is also submitted that when the non-petitioner is the owner of the property and is in possession then he cannot be restrained from enjoying the property. Learned counsel for the non-petitioners further submitted that the non-petitioners is ready to submit undertaking that in case, the suit will be decided against the non-petitioners, which is filed by the non-petitioners or in case, the petitioner's suit is decided against the non-petitioners then the non- petitioners will not claim any equity on the ground of his raising any construction over the property in dispute and they will remove their entire structure at their own costs. I considered the submissions of learned counsel for the parties and perused the facts of the case as well as the reasons given by the two courts below and the record also. It is not in dispute that the two courts below have concurrently decided the issue of facts against the petitioner and despite the Commissioner's report which in fact, is ex-parte showing the possession of the petitioner, refused to grant injunction in favour 6 of the petitioner and granted injunction in favour of the non-petitioners. It is also relevant to mention here that the original sale deed of the petitioner is with the non-petitioners – the subsequent purchaser of the plot in dispute for which vendor has been shown as petitioner and the sale deed was got registered through power of attorney holder and there is an agreement to sell also. There are cross witnesses in the documents. In view of the above reasons, if the Commissioner's report prepared ex- parte was not accepted by the courts below and in view of the fact that non-petitioners undertaking not to claim any equity in their favour because of any investment made by them, I do not find that any other order could have been appropriate order except to grant injunction in favour of the non-petitioners. In view of the above, I do not find any merit in this writ petition and the same is hereby dismissed. However, it is made clear, in case, the non- petitioners will raise any construction over property in dispute then that construction shall not be raised without obtaining prior permission of the local bodies and further if the non-petitioners raises the construction after obtaining the prior permission of the local body then it will at their risk. It is further made clear that there will be no need to give any police assistance to the non-petitioners for the 7 purpose of raising any construction because of the reason that in the garb of this order or with the assistance of the court, the non-petitioner cannot raise construction. (PRAKASH TATIA), J. c.p.Goyal/-