1 S.B. Civil Writ Petition No.8757/2009 Mohan Lal Vs Bhera Ram Date of Order: 28.4.2010 HON'BLE MR. PRAKASH TATIA, J. Mr. Moti Singh, for the petitioner. <><><> Heard learned counsel for the petitioner. The petitioner is aggrieved against the order dated 10.8.2009 passed by the court of Civil Judge (Jr. Div.) & Judicial Magistrate, First Class, Pali Marwad whereby the trial court rejected the petitioner's application seeking virtually striking of the counter claim of the defendant or separating it from the suit of the plaintiff on the ground that the plaintiff filed the suit for specific property by giving its complete neighbourhood which has been admitted by the defendant in the written statement and the defendant in the counter claim has claimed relief for altogether a different property which may be belonging to the defendant. It is submitted that it is not permissible for defendant to seek any relief other than the relief, which has relation with the subject matter. According to learned counsel for the petitioner, therefore, the counter claim can be separated. I considered the submissions of learned counsel for the petitioner and perused the facts stated in the counter claim. In para no.5 of the counter claim, the defendant specifically pleaded that plaintiff do not want measurement of the plot in 2 question and wants to encroach upon the defendant's plot and this is so because of the reason that other persons namely Om Prakash and Kanaram encroached upon the plaintiff's plot. Therefore, the plaintiff wants to take possession of the property of the defendant in the garb of the present suit. From the facts mentioned in para no.5 of the counter claim it is clear that it is not a case of dispute of title rather it is a case of disputed identity of the property and location of the pot and defendant has pleaded that he is not disputing the petitioner's property but in the garb of that claim if plaintiff wants to encroach upon the defendant's plots then it is the defendant who is entitled to relief for injunction by showing that the plot for which in fact suit has been filed is in the boundary of the defendant's plot. All these facts can be decided after evidence and cannot be decided by way of application nor the counter claim can be rejected without deciding the pleas taken in counter claim. Therefore, the trial court has not committed any error of law in any manner. In view of the above, there is no merit in this writ petition and the same is hereby dismissed. [PRAKASH TATIA],J. cpgoyal/-