1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Bheekam Chand Khatri Vs. Civil Judge Junior Division and Judicial Magistrate, Pushkar & Ors. (S. B. Civil Writ Petition No.2748/2010) S. B. Civil Writ Petition under Articles 226 & 227 of the Constitution of India. Date of Judgment: August 17, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Peush Nag, for the petitioner. BY THE COURT: Aggrieved by the order dated 25.03.2006, passed by the learned Civil Judge, Senior Division and Judicial Magistrate, Pushkar and by the order dated 26.11.2009, passed by the learned Additional District Judge No.1, Ajmer, whereby the learned Judge has upheld the order dated 25.03.2006, the petitioner has approached this Court. The brief facts of the case are that according to the petitioner, he claims that since 1996, he is a tenant of Shri Brahma Ji Ka Mandir, Pushkar which is being run by the respondent No.3. He further claims that he is paying a yearly rent of Rs.3,000/- to the respondent No.3. However, as the respondent No.3 wants to oust the petitioner 2 from the small wooden cabin which has been rented out to him, the respondent Nos.3 & 4 have colluded to illegally take the possession of the petitioner's rented premises and to remove his possession therefrom. Thus, the petitioner had filed a civil suit for permanent injunction. Along with the suit for permanent injunction, he had filed an application for temporary injunction. The respondent No.3 had also filed an application under Order 39 Rule 1 & 2 CPC and had prayed that the encroachment made by the petitioner over 8 ft. road adjacent to the Brahma Mandir should be removed. The court had appointed a Commissioner for inspecting the site. After going through the commissioner's report, vide order dated 25.03.2006, the learned Civil Judge had directed the petitioner to remove his encroachment beyond the wooden cabin which has been rented to him. Since the petitioner was aggrieved by the order dated 25.03.2006, he had filed an appeal before the first appellate court. However, vide order dated 26.11.2009, the learned Judge has dismissed the said appeal. Hence, this petition before this Court. Mr. Peush Nag, the learned counsel for the petitioner, has vehemently contended that according to an admission made by the respondent No.3, the width of the road was 8 ft. out of which 3 a wooden cabin of 6 ft. was rented out to the petitioner. Hence, the remaining part of the road was only 2 ft. According to him, the petitioner has not encroached upon the area of 2 ft. In case, he has, he is willing to give an undertaking before this Court that he will remove the encroachment and will not encroach upon the remaining 2 ft. of road. He has further contended that this fact has been ignored by the learned Civil court as well as by the learned Judge. Heard the learned counsel for the petitioner and perused both the impugned orders. A bare perusal of the impugned order dated 25.03.2006 clearly reveals that the interpretation being given by the petitioner is without any basis. According to the respondents, “the land which is lying outside the 8 ft. road, a wooden cabin on that said land was rented out”. It was not the case of the respondent No.3 that on a 8 ft. road, a 6 ft. cabin was rented out to the petitioner. Moreover, the learned Judge has noticed that according to the Commissioner's report, there was ample encroachment being made by the petitioner. Therefore, while leaving aside the wooden cabin, which was rented out to the petitioner, the learned Civil court has directed that the rest of the encroachment made by the 4 petitioner should be removed within ten days. Moreover, the petitioner was directed not to encroach upon the 8 ft. road. Since the impugned order is based on the Commissioner's report and since at this moment, there is no reason to doubt the veracity of the Commissioner's report, this Court does not see any illegality or perversity in the impugned order dated 25.03.2006. Even in the order dated 26.11.2009, the learned appellate court has given cogent reasons for upholding the order dated 25.03.2006. Hence, this petition is devoid of any merit. It is, hereby, dismissed. (R.S. CHAUHAN) J. Manoj solanki